AMIN-UD-DIN KHAN, J. Through this single judgment we intend to decide the above captioned Writ Petition as well as 42 other Writ Petitions mentioned in Annexure-A of this judgment.
2. The main prayer in the instant writ petition as well as in identical writ petitions mentioned in Annexure "A" is noted as below:- "It is most therefore, respectfully prayed that respondent No.1 be directed to get verify and attestation of the Degrees and transcripts of the petitioners issued by the Preston institute of Management Science and Technology forthwith in the interest of justice.
Any other relief which this Hon'ble Court deems fit and proper may also be awarded to the petitioner ."
The case pleaded through the respective petitions by the petitioners/students is that they got admission in various courses introduced by a sub- campus of Preston Institute of Managem ent Science and Technology , 177/2, IEP Building Opposite Regent Plaza Hotel, Shahr-e-Faisal Karachi, which was being run at that time under the Chairmanship of respondent No.5. In later part of this judgment "Institute" will mean (Preston Institute of Management Science and Technology , 177/2, IEP Building Opposite Regent Plaza Hotel, Shahr-e-Faisal Karachi ) and "sub -campus" means (Preston Institute of Management, Science and Technology , 4-A New Muslim Town, Lahore ). The petitioners got admissions and paid tuition fees along with other charges, completed the studies of their courses introduced by the "sub-campus" and after completion of their courses they were granted/issued transcripts and degrees by the "Institute". The "sub-campus" was of the Chartered Institute having its charter from the Government of Sindh. The petitioners approached the Higher Education Commission for verification of their degrees and transcripts. On refusal by the HEC for verification of their transcripts and degrees, some of the students approached to the Federal Ombudsman. The Ombudsman passed an order on 15.09.2016. After that the students approached the Higher Education Commission but without any progress. It is pleaded that some of the degrees issued by the Institute in favour of students who studied at sub-campus were verified by the HEC but by discrimination the petitioners were refused, therefore, it is clear violation of Article 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973, hence these writ petitions with the prayer noted supra.
3. The report and para wise comments, supported with the voluminous documents, were filed by the Higher Education Commission, Govt. of the Punjab as well as respondents No.5 to 7 and 9.
4. The pivotal question before us is that whether the Institute has validly established a sub-campus at Lahore, to consider the prayer of the petitioners. Though the question of valid or invalid establishing sub-campus is not directly raised before us by any of the parties except in reply the stance of Higher Education Commission is that it was absolutely invalid and illegal sub-campus established without observing the formalities and even Parent Alert was issued for the information of parents by the HEC. It is the case of respondent No.1 (HEC) that without going through this aspect of the case or declaring the validity or invalidity of the sub-campus as legal/valid or illegal/invalid, the prayer made in the writ petition cannot be considered. We agree with the learned counsel representing the High Education Commission, though it was the duty of respondent No.7 to resolve the problem of the students regarding not verifying their degrees by the HEC issued in favour of the students by the sub-campus at Lahore of the Institute of respondent No.7 but neither they have come to the court nor record shows that they ever made any effort to resolve the matter in issue except that before us they have tried to establish that though there were some discrepancies in performance of their duties but they support the prayer made by the students through these writ petitions.
5. Learned counsel representing the respondents No.5 to 7 and 9 has argued that for establishment of a Campus by a private chartered degree granting Institute, the HEC was nothing to do with the establishment of sub-campus. The only duty of the HEC was to visit the sub-campus in accordance with Section 10 of the Guidelines for the establishment of new University or Institution of Higher Education commonly known as Cabinet Criteria as the Cabinet has approved these guidelines in the year 2010. Therefore, it is necessary for us to note the series of facts about the charter of the Institution at Karachi and establishment of its sub-campus at Lahore.
6. The history of PIMSA T which we are taking from the report and para wise comments submitted by respondent No.9 that in the year 2001 the Preston Institute of Management, Science and Technology Ordinance 2001 was promulgated as Sindh Ordinance No.XXVI of 2001. In accordance with Section 3 of the Ordinance an Institute to be known as the Preston Institute of Management, Science and Technology at Karachi. For ready reference we quote sub-paragraphs (1) & (2) of Section 3 of the Ordinance, which are as follows:- (1). There shall be established an Institute to be known as the Preston Institute of Management, Science and Technology at Karachi consisting of the Patron, the Chairman, the Rector, the Deans, the Chairmen of the Teaching Departments, the members of the Board, the members of the Academic Council and such other officers as may be prescribed.
(2). The Institute shall be a body corporate by the name of the Preston Institute of Management, Science and Technology owned, managed and administered by the Society having perpetual succession and a common seal and shall sue and be sued by the said name.
(3).
(4).
7. We also note that in Section 4 the powers of institute have been mentioned as prescribed by the Government or the University Grants Commission as at that time University Grants Commission was functioning, now it is Higher Education Commission. As per the counsel for respondents No. 5 to 7 and 9 in the 5 meeting of Board of Governors of the PIMSA T Karachi held on 13.8.2009 Agenda Item No. 9 was with regard to opening a campus at Lahore. Refers that vide order dated 7.10.2008 a permission was sought from the Provincial Education Department, Government of Punjab, Lahore. Ultimately as per learned counsel the NOC was granted on 21.5.2008 for a period of six months subject to fulfillment of conditions mentioned in Para 2 of the said notification. Para 2 of the Notification is reproduced verbatim:- "The NOC is valid for six months only, from the date of issuance. Within stipulated time period the sponsors of the Institute are directed to complete all the legal formalities (as laid down in Section 1.2.1 and 2.2.2 of the criteria) regarding the opening of an Institute in private sector, notified by the Higher Education Department vide No. SO(Univ.) 5-6/2004 dated 20 September, 2006."
8. The HEC wrote a letter to the HED on 21.5.2009 for withdrawal of the Notification of NOC on the ground that the PIMSAT Karachi does not have any provision of operating campus in other Provinces. It is stated by the learned counsel for the said respondents that the period of NOC was never extended despite the fact that extension was sought. States that in six months an Institution cannot meet with the requirements mentioned in the NOC, therefore, extension was sought. It was also argued by the learned counsel for the said respondents that even a move was made for amendment of the Charter before the Governor of Sindh which was processed by the concerned staff of the Governor office but it could not be materialized in the shape of issuance of amended Ordinance by the Governor.
9. Now we consider the point that what are the powers/domain of HEC, whether respo ndents Nos. 5 to 7 and 9 were not required even to inform the HEC for opening the sub-campus of the institute at Lahore or they were required any permission from the HEC or there is any supervisory control of the HEC if any sub-campus is established by a Charter Degree Granting Institute in any other City or Province. The HEC is governed by the HEC Ordinance, 2002. Section 10 relates to the Powers and Functions which is reproduced:-
10. Powers & Functions of the HEC. (1) For the evaluation, improvement, promotion of higher education, research and development, the Commission may ----
(a) formulate policies, guiding principles and priorities for higher education Institutions for promotion of socio-economic development of the country;
(b) cause evaluation of the performance of Institutions; (c)
(d) prescribe conditions under which Institutions, including those that are not part of the State educational system, may be opened and operated;
(e) set up national or regional evaluation councils or authorize any existing council or similar body to carry out accreditation of Institutions including their departments, faculties and disciplines by giving them appropriate ratings. The Commission shall help build capacity of existing councils or bodies in order to enhance the reliability of the evaluation carried out by them;
(f) advise the Federal Government and the Provincial Government on proposals for granting a charter to award degrees in both public and private sector ,
(o) determine the equivalence and recognition of degrees, diplomas and certificates awarded by Institutions within the country and abroad;
(q) provide guidelines as regards minimu m criteria and qualification for appointme nt, promotion, salary structure in consultation with the Finance Division and other terms and conditions of service of faculty of adoption by individual Institutions and review it implementations;
(v) guide Institutions in designing curricula that provides a proper content of basic sciences, social sciences, humanities, engineering and technology in the curricula of each level and guide and establish minimum standards for good governance and management of Institutions and advise the Chancellor of any institution on its statutes and regulations;
(y) perform such other functions consisten t with the provisions of this Ordinance as may be prescribed or as may be incidental or consequential to the discharge of the aforesaid functions."
Clause (d) of section 10 relates to conditions under which institutions including those that are not part of said education system may be opened and operated. Under Class (e) of Section 10(1) of the HEC Ordinance there are 5 Accreditation Councils established under the HEC which are as under:-
1. National Computing Education Accreditation Council.
2. National Business Education Accreditation Council.
3. National Accreditation Council for Teachers Education.
4. National Agricultural Education Accreditation Council.
5. National Technology Council.
That these five councils are apart from the other nine Councils regulating professional education and established under their respective laws are:
1. Pakistan Bar Council.
2. Pakistan Council for Architects and Town Planners.th th
3. Pakistan Engineering Council.
4. Pakistan Medical and Dental Council.
5. Pakistan Nursing Council.
6. Pakistan Pharmacy Council.
7. Pakistan Veterinary Medical Council.
8. National Council for Homeopathy.
9. National Council for Tibb."
Under Clause v of section 10 the HEC in order to impart quality education at par with the international standard the Curriculum Division of HEC undertakes the revision of curricula. In accordance with Clause (o) of Section 10 as provided in Cabinet Criteria the HEC verifies the availability of physical, financial and academic infrastructure, and if the same fulfills the criterion the NOC is issued for award of the Charter by the concerned legislature, in that case no post Charter NOC is required.
10. There are guidelines for the establishment of a new University or an institu tion of Higher Education. These are approved by the Cabinet, therefore, same are called Cabinet Criteria. Para 3.1 of the Criteria is reproduced for ready reference:- "Institutions normally apply to the concerned Government where they are situated. In case the institution is located in the federal territory, the application shall be made to the HEC. In case an institution is based in a provincial territory, the application shall be addressed to the concerned Provincial Education Department. The Chancellors' Committee in its first meeting held on May 11, 2004 necessitated that each Provincial Government will follow the Cabinet Criteria for evaluation and grant of charter. In case of grant of provincial charter, the HEC is usually consulted by the Provincial Governments. For this purpose, the clearance by the HEC shall help in facilitating the grant of charter."
Para 3.2.2 as well as 3.3.1 are also reproduced:- "General Institutional requirements.
The essential requirements for meeting institutional formalities are detailed in Form PU-01 and may be categorized under the following main headings: Registration as a legal entity .
Premises and availability of physical resources.
Organization and governance.
Administrative and academic staf fing.
Student body and student support services.
Programmes of study and courses of study .
Teaching and learning.
Examination and assessment.
Quality assurance mechanism, student supervision and Budget & Finance.
Sub-Para (xvi) of Para 4.3 and (xvii) are also reproduced respectively:- "That permission granted shall be restricted to a specified place and a particular course/degree. No sub-campus, branch or outpost shall be established or franchised without the prior approval of the HEC.
And Campuses located in one city of a private university/institution will be considered collectively as one unit for the application of the criteria. However, the campus of a private university/institution located in other cities would be treated as a new institution and the same criteria will be applicable to each campus."
4.6 is relating to Monitoring which is also reproduced:- i. That the institution shall furnish such reports, returns and other information as the HEC may require, enabling it to judge the efficiency and effectiveness of the institution; ii. the HEC or the Education Department of the concerned Province shall be competent to carry out periodic inspections and monitoring the visitation as may be determined from time to time. iii. that the establishment and continuation of arrangements shall be subject to visitation/monitoring by the HEC or the Education Department of the concerned Province and that the institution strictly follows the rules framed by the concerned from time to time; iv. that the HEC or the Education Department of the concerned Province may call upon any educational institution to take such action as may appear necessary in respect of any of the matters specified under any law for the time being in force or any rules of the concerned bodies; v. that the HEC or the Education Department of the concerned Province shall have full powers to take any such action, including closure of an institution, if it has been found indulging in any subversive or unlawful activity , or it avoids/overlooks provisions of laws etc; vi. The HEC would be the competent authority to grant accreditation, validate courses and syllabi of the university/institute, which shall be subject to quality standards set by the HEC. The accreditation will be withdrawn if found that the institution is unable to satisfactorily demonstrate its ability and commitment to achieve and maintain national academic standards; vii. The university/institute shall be liable to provide facilities to the representatives of the HEC, the Pakistan Engineering Council, Pakistan Medical and Dental Council or such similar relevant organizations for visitation to enable them to verify that the university/institute is maintaining appropriate academic standars."
We have noticed that vide order dated 24.4.2017 this Court directed Dr. Nizam-ud-Din, Chairman Punjab Higher Education Commission who was present in Court to submit report whether Punjab Higher Education Commission has played its role to eradicate all evils played by respondents Nos. 5 and 7 with the public at large. Record shows that a Committee was constituted comprising (i) Mr. Nazeer Hussain, DG, HEC, Regional Centre, Lahore, Convener; (ii) Mr. Muhammad Zargham Nusrat, Controller of Examination, UET, Lahore, Member; and (iii) Raja Shahid Javed, Additional Controller of Examinations, University of the Punjab, Lahore, Member and the Committee gave the findings which are reproduced as under:-
1. The Committee observed that the BOG of the PIMSA T Karachi, even though not competent to do so, has even in fact never accorded any approval for opening and establishing any teaching establishment at Lahore. As mentioned above the BOG never instituted or recruited any faculty for teaching at Lahore. This shows that the sub-campus claimed to be of PIMSA T Lahore has no connection with the PIMSA T Karachi. If some officer of the Institute be it Chairman or Rector , has been running an Institute or teaching establishment of its own the same cannot be deemed to be a part of the Institute at Karachi. This fact is further augmented by the fee receipts which have email addresses (edpimsat _lahore@yahoo.com and chairmanpimsat@hotmail.com ) which do not belong to PIMSA T official domain. If the Petitioner/students had paid any fees to the Institute then it should have gone in the account of the PIMSA T Karachi via its Authorities, and not in the account of some or any of its Of ficers.
2. The institute at Lahore using name PIMSAT Lahore seems to be having some links or deal with the officials at PIMSA T at Karachi only for signing of degrees and transcripts allegedly issued to the students enrolled at Lahore without knowledge and approval of the Authorities of the Institute including Board of Governor . This matter needs further investigation and the Authorities of the Institute especially the Board of Governors may be asked to look into the matter .
3. The final gazette notification of results was also not declared by the PIMSA T Karachi under the signature of the Controller of Examination which further shows that there exists no link between PIMSA T Karachi and the alleged Lahore campus.
4. In view of the above facts this Committee has unanimously concluded that the Lahore establishment has no nexus whatsoever with the PIMSA T at Karachi and just one Officer of the Institute i.e. the Chairman was running his private establishment under the garb of Lahore campus of the PIMSA T Karachi and he managed, in connivance with some other officers of the PIMSA T Karachi, the issuance of transcripts and degrees of the students of the alleged Lahore campus."
11. After the scrutiny of above mentioned notification, correspondence, the relevant provisions of HEC Ordinance, the guidelines (Cabinet Criteria) and the PIMSA T Ordinance we are of the view that before opening the campus at Lahore the PIMSA T was required to have powers in its own Ordinance, whereby the Charter was granted, to establish an institution at Karachi, for establishment of any campus out of the Sindh Province.
Admittedly , the amendment sought by PIMSA T was not from the Provincial Assemb ly of Sindh, furthermore the process initiated in the wrong forum, never ended with the issuance of amended Ordinance or Ordinance. Needless to observe that Governor to act on the advice of cabinet or the Chief Minister in accordance with Article 105 of the Constitution of Islamic Republic of Pakistan, 1973.
12. The NOC granted to PIMSAT Karachi by the HED Punjab for opening of sub-campus was conditional, that too, for a period of six months which admittedly was never extended and there is nothing on record to show that the conditions were fulfilled.
13. On the basis of Cabinet Criteria specially sub-para (xvi) of Para 4.3 the opening of sub-campus without the permission of the HEC was not competent. Even there is nothing on the record to show that the Board of Governor of PIMSAT Karachi (Institution) ever discussed agenda item and approved any mechanism for the establishment of sub-campus at Lahore. The only record is available for purchase of land for the establishment of sub-campuses at Lahore and nothing more. There is also nothing on record to show that faculty members were appointed by the Board of Governors of PIMSAT and what was the faculty for each degree program. Further astonishing fact is that as per the detail provided to us from Karachi Campus there are total 8323 degrees granted to the students of main campus of PIMSAT Karachi, whereas from the Lahore sub- campus the number is 21350. Even it is not the case of PIMSAT that they either sought permission from the HEC for establishment of campus or anything on record to show that the PIMSAT sub-campuses ever presented their record to the HEC with regard to registration of their students at sub-campus. The record of faculty members appointed by the competent authority and their qualification as a teacher of the subject for which the students were given admission was also never provided to the HEC, as this fact was noted by the Inspection Committee constituted by the HEC after the orders passed by this Court and Committee was of the view that there is no record of proper appointment of faculty members of the degree classes by the authority and record of students is also not proper and further the invitation to the HEC for the inspection of the campus to see that the campus otherwise meet with the criteria of building library and other facilities required to be given to the students for a degree program is also not available. In these circumstances, we are unable to accede to the reque st made by the students through the instant writ petition as well as writ petitions mentioned in Annexure-A etc with this judgment, therefore, instant writ petition as well as writ petitions mentioned in Annexure-A are dismissed with no order as to costs.
14. Before parting with this judgment we express our great concern, prima facie we observe that lives/future of thousands of students have been ruined when as per students they had paid fees etc. and at the end of the day their degrees are not being recognized by the HEC. During hearing of the arguments on the basis of parental jurisdiction the HEC was directed to consider hardship of the students. The HEC in writing submitted following solutions to resolve the matter on 23.1 1.2018. The main solutions suggested are reproduced:- i. As such the degrees of all students enrolled up to Spring-2009 at Lahore campu s of PIMSA T Karachi will be recognized by HEC, subject to the fulfillment of all codal formalities, and in line with rules and regulations. i. The recognition of professional degrees (if any) (i.e. Law/Engineering/ Medicine/ Pharmacy/Architecture etc) will be subject to registration by the relevant professional accreditation councils. iii. However, the students who were enrolled in and studied after spring-2009 at the illegal campus of PIMSAT at Lahore, in violation of directions of this Commission and Government of the Punjab, would be required to appear and obtain passing marks in a comprehensive test prior to the recognition of their awards. Each such student would be given only one opportunity to appear in test, and obtain a minimum of 50% marks in the comprehensive test for the verification of his/her degree failing which their degrees will not be recognized. All the expenditure on the conduct of test would be borne by PIMSAT Karachi. iv. Degrees of all MS/MPhil and PhD programs (if any) after 2009 would not be recognized by HEC. The University will be required to reimburse three times fee/expenses incurred by these students to compensate for their financ ial loss and mental agony . These students would also be entitled to claim any other damages from the institution for the wastage of their precious time and money; v. All the students whose degrees are not recognized by the Commission, those students would be entitled to receive three times the fee/expenses incurred by them. They would also be entitled to claim any other damages from the university for the wastage of their time and money . vi. Admissions/fresh intake at PIMSA T Lahore shall continue to be banned/closed and the name of the campus will remain in the list of illegal/fake institutions. vii. The institution will provide a list of all graduated students as per HEC specimen within seven days, as the earlier data was incomplete."
The above solutions were not acceptable to the students, therefore, we do not further comment upon this offer of the HEC. Under the orders of the Court dated 30.03.2017 the names of respondents Nos.5 and 7 were placed on Exit Control List (ECL) and bank accounts being operated by respondent No.7 were attached. As we are of the view that prima-facie lives of the students have been ruined, it is a case of reference to NAB authorities, therefore, we refer the matter against respondents Nos.5 to 7 and 9 to the NAB authorities to investigate the matter and proceed in accordance with law, therefore, for a period of three months from the date of announcement of this judgment, the names of respondents be placed on ECL and the bank accounts shall also remain attached, after that if there is any proceeding initiated by the NAB authorities, both the above noted matters will be governed in accordance with law and if no proceedings are required to be initiated by NAB authorities, respondents Nos.5 to 7 and 9 will be free to move this Court for release of their bank accounts and removing their names from the ECL. The students, if so advised, may move for damages against respondents before the appropriate forum.
15. We further direct the Govt. of Punja b, HED of Govt. of Punjab and HEC to inquire into the matter and proceed against the delinquents in accordance with law .
16. It is noted that office has also fixed W.P.No.229466 of 2018, W.P.No.62890 of 2017 and W.P.No.212000 of 2018 along with the instant writ petition. The said writ petitions are not directly relevant of the decision of this writ petition by this Full Bench. Therefore, office to fix these writ petitions before the learned single bench for decision of the same on merit.
17. Office is directed to immediately transmit an attested copy of this order to the Chairman NAB, as well as, the Director General, NAB Lahore for compliance of this order .
MUHAMMAD AMEER BHA TTI, J:- I disagree with the judgment proposed to be delivered by my learned brothers, hence I decided to record the reasons separately and I would like to observe that the petitioners have called-in-question an illegal act or omission of a public authority-the respondent-Higher Education Commission, whereby it refused to verify the degrees issued to them by Preston Institute of Management Science and Technology (PIMSA T), Karachi, campus at Lahore. Reply was submitted by the respondents-Government of Punjab and the Higher Education Commission. During pendency of this petition, at one stage of proceedings, the respondent-Higher Education Commission submitted its decision/statement, which reflects that the students who got their degrees till 2009 were allowed to be verified but after that, the claimants of degrees from this Campus were suggest ed to pass cumulative tests in one attempt to be held by it. This offer was not accepted by the present petitioners and they decided to contest the petition on merits.
2. This Campus at Lahore was being operated by the present administration since 2009 and before its opening, on application No Objection Certificate was issued by the Government of Punjab vide letter dated 23.04.2009 after approval of the competent authority-Chief Minister with its validation for six months subject to fulfillment of two conditions: first, obtaining of permission/NOC from the Punjab University , Lahore, and; second to get Charter from Government of the Punjab, through accreditation process, however , the administration of Campus requested for waiving of conditions explaining it to be un-warranted on account of lack of legal backing. Consequently , vide letter dated 21.05.2009 NOC was issued excluding the above mentioned conditions but other conditions mentioned vide clause 1.2.1 and 2.2.2 were emphasized to be satisfied.
Respondent-Higher Education Commission vide letter dated 21.05.2009 followed by another letter dated 23.10.2010 addressed to the Higher Education Department intimated regarding grant of NOC unlawfully with a request for its recalling but this request was not adhered to, rather , on the other hand letters available on record establish that No Objection Certificates for establishment of Campuses in different nine cities of Punjab were issued. The Sub-campus wrote a letter to the Higher Education Department for extension of time stipulated in NOC, however , the Campus started to impart education to alumni after accomplishing the requirement of law but admittedly the authority remained silent astonishingly . On the other hand, none of the authority/department obliged/ever took any measure for closure of the Institute and remained in slumber for a long interregnum during which period precious rights suppo rtive in structuring students' careers accru ed in their favour who spent energetic part of their early life and investment in achieving degrees. This is a precise summary of facts with the explanation that it is no one's case that Institute was performing/imparting education validly or legally nor it is the case of the respondents that institution/campus was not imparting education as there is no evidence on record relating to the period the campus imparted education.
3. I do not want to indulge myself in dispute that institution was validly established or not as none claimed its validity besides its opening was under a valid order of the competent authority . Above inference could be supported from the inaction of the relevant authority who having its knowledge regarding running and imparting of educa tion had not taken any decisive steps for its closer or issued any parent alert. It is significant to note that the petitioners-students could not be considered at fault who had not been informed by the authority/department about the shortfall/deficiency in establishing of Campus and if the action had been taken by the authority/department at the relevant time the position would altogether have been different whereas record reveals that Com mission wrote some letters to University about illegal opening of Campus and University was threatened for issuance of parents alert but no action was taken and things were allowed to continue. The facts remain that the Higher Education Commission had the knowledge of its being operational from grant of NOC by the government of Punjab, hence, it raised the objection about lack of any provision of opening of Campus outside Karachi/Sindh but had not taken steps to inform the public at large restraining them to obtain admission in the campus. Additionally it is also noticed that there is no evidence about shortfall/deficiency regarding its performance. It is expedient to reproduce the letter dated 26.09.2009: "Subject:- CATEGORIZA TION OF PRIV ATE SECT OR UNIVERSITIES/DECREE AWARDING INSTITUTIONS IN RELA TION TO MEETING CRITERIA REQUIREMENTS.
Dear Sir, It is to inform you that Higher Educat ion Commission is currently carrying out an exercise to inspect the campuses of Private sector universities/institutes and then to categorize them accordingly. Since, the Ordinance of PIMSAT has no provision/clause for opening campus/sub campus therefore you cannot operate through campus or sub-campus unless specific amendments are incorporated in the subject Ordinance".
This shows the interest/connivance of the Commission. Had the respondents: Higher Education Commission and Higher Education Department, taken the prompt action to close the Campus and issued the parents alert the future of the students/petitioners would have not been at stake.
Slackness of the respondents provided the opportunity to administration of the Campus to grab the attention of the students to acquire the education through recognized University's Campus, therefore, I am of the view that leaving the students, at this stage, at the mercy of the respondents for obtaining the recognition of their degrees according to a mechanism not recognized in law/rules, would be sheer injustice with them when they were not at fault and they acquired the education being bonafide students because Campus was within heart of the city, who invited/fascinated the students/parents through display of enormous billboards/advertisements in widely circulated newspapers, and now undesirably they are engaged in litigation to guard their career. Having regard to all relevant circumstances, to my mind the foremost questions before us arising out of the ensuing events are:- i) Whether the education obtained from invalidly constituted institution would not be recognizable education because we are not supposed to answer regarding validity or invalidity of the same as we are dealing with the question concerning the education acquired by the present petitioners from invalidly established educational institution but having its knowledge by all the competent authorities. ii) Whether the education acquired by bonafide students from institution technically invalidly established, can be thrown away . iii) Whether the knowledge imparted by the invalidly constituted institution can be snatched from bonafide students, who had not been provided any information nor any prompt action had been taken to close that institution as when it was the foremost duties of the respondents.
To answer these proposed queries emerged from the facts and circumstances, I have examined record of the case and also considered the detailed arguments advanced by learned counsels for the parties.
4. Record does not reveal non-imparting of education according to standards and criteria laid down by the Higher Education Commission or the Higher Education Department. All the letters written by the Higher Education Commission either to the Higher Education Department or to PIMSA T Karachi were with regard to closing of the Campus on account of shortfall/deficiency in obtaining No Objection Certificate from the competent authority or missing of any provision in charter of Preston Institute of Management, Science & Technology for establishment of any Campus out of Karachi or out of Province. Therefore, fact remained unchallenged regarding holding of classes and running of institution according to the principles determined by the Higher Education Commission.
5. Agreeing to exempt from taking cumulative exams from the degree-holders, who obtained admissions till 2009, is sufficient evidence that the Institution was operational and imparting education in strict adherence of the criteria determined-formulated by the Higher Education Commission and Higher Education Department. Therefore, on account of some legal impedime nt to open Campus at Lahore although first it was opened with the permission of Government of the Punjab but deficiency remained there and I am not inclined to touch merits of the inaugural of the Campus, hence, confining myself to the extent that proper/legal steps had neither been taken by the Commission or authorities to close this Campus nor measures had been adopted to warn the students/parents despite having knowledge of legal deficiencies of opening of Campus, therefore, permitting it to impart education was contributory negligence on the part of the Commission/authorities as well and for these reasons students, at this stage, cannot be abandoned to suffer. Had the proper measures been adopted at the relevant time, the position, as stated above, would have been otherwise and Campus which was closed in the year 2016 would have been closed earlier. Letters written by the Commission to the University indicate that they intentionally had not taken the punitive measures against the University for opening of campus at Lahore, even University was warned to issue parents alert but no decisive steps were taken to save the students/parents, therefore, at this stage, solution extended for appearance/holding of cumulative examination, is suggested to be not reasonable besides lacking of any legal backing. In a case, 'Pharmacy Council of Pakistan through its Secretary v. Zakir Khan and others' dated 17.12.2018 Hon'ble Supreme Court held that demand of Council from exit students to clear the pre requisites/exit test on account of lacking of legal backing of holding/demand of that test was disallowed. It is expedient to reproduce the relevant Para of the judgment/order of the apex Court which is as under:- Learned ASC for the petitioner has contended that as the "D" Pharmacy evening programme was issued without obtaining NOC from the petitioner by the said University , which was the requirement of the Act, therefore, not only the said University was liable to fine which it has agreed to pay and is paying but petitioner is also entitled to take pre-registration/exit test from the students, who have completed "D" Pharmacy Course in the evening programme. We have asked the learned ASC for the petitioner to show any specific provision of law that of Pharmacy Act of 1967 or rules or regulations made thereunder authorizing the petitioner to obtain from the students, who have completed "D" Pharmacy course such tests, the learned ASC while going through various papers and the law, could not cite before us any specific provision authorizing the petitioner to take pre- registration/exit test from the students, who have completed their course of "D" Pharmacy in the evening programme. In the absence of any provision in the law authorizing the petitioner to take pre-registration/exit test, the condition imposed by the petitioner upon the students, who have completed their "D" Pharmacy Course in evening programme from the said University appears to be based upon no authority of law and obviously of no legal effect. Nothing has been shown to us on the basis of which any interference in the impugned judgment is required by this Court. The petition is therefore, dismissed and leave refused".
6. Besides above, in compelling circumstances, I am inclined to invoke the de facto doctrine, out of necessity , to protect the future of students to save them from inconvenience on accou nt of inaction of the authority/Commissio n/Department. The de fecto doctrine is an established principle invoked by the Superior Courts to bring regularity and prevent confusion in the conduct of public business which may be created by persons not legally entitled to perform such duties yet have continued to do so without any objection. Reliance is placed on Malik Asad Ali and others vs. Federation of Pakistan through Secretary , Law, Justice and Parliament Affairs, Islamabad and others (PLD 1998 SC 161) wherein it was held as under:- "Holder of a public office----De facto exercise of power by a holder of a public office (Chief Justice of Pakistan) ---Exercise of power by a de facto holder of the public office is based on sound principle of public policy to maintain regularity in the conduct of public business, to save the public from confusion and to protect private rights which a person may acquire as a result of exercise of power by the de facto holder of the office---Acts done and orders passed by holder of public office in his de facto capacity will be protected under the doctrine of de facto exercise of power till he is restrained to act as such by the Court through a judicial order from exercising any function as holder of the public office (Chief Justice of Pakistan in the present case)".
Same view was taken in Muhammad Fahad Malik v. Pakistan Medical and Dental Council and others (PLD 2018 Lahore 75 ). The relevant paragraph is reproduced as under:- "De facto doctrine---Nature, scope and applicability---De facto doctrine was an established principle invoked by the superior courts to bring regularity and prevent confusion in the conduct of public business which may be created by persons not legally entitled to perform such duties yet when such persons had continued to do so without any objection".
7. It is important to note here that petitioner No.1 also made a complaint before the Federal Ombudsman, where, after contest by the department, vide order dated 15.09.2016, same was closed with the following findings:- "In view of the fact that question of the Student' s Future is at stake the Agency is advised to expedite the Verification process of the Degrees of the Students of PIMSA T, Karachi and outsid e Karachi. The Agency should complete the process within 15 days of the receipt of this finding. The Agency is also advised to consider giving powers to the Commission to take action with the collaboration of Local Administration against the Universities/Institutions, who do not follow the Academic Standards/Criteria set by Higher Education Commission, so as to ensure that time and resources of the Students are not wasted. The action taken may be intimated to WMS within 30 days of the receipt of this Finding."
Against the aforesaid order, the Higher Education Commission filed review petition, which was rejected on 23.01.2017, hence the order passed by the Federal Ombudsman had attained finality.
8. In view of the above, I am inclined to declare the action of the respondents/Higher Education Commission refusing to recognize the degrees of the petitioners as illegal, unlawful and without any legal justification, therefore, the Higher Education Commission is directed to verify the degrees of the petitioners forthwith. With this direction, this petition stands accepted.
DECISION OF THE COURT : By a majority view of 2 and 1 (Muhammad Ameer Bhatti, J. dissenting), all these petitions stand dismissed.
ANNEXURE-A LIST OF CONNECTED MA TTERS DECIDED ALONG WITH WRIT PETITION NO. 872 OF 2017 Sr.
No.Case No. Title
1. W.P.No.4243 of 2017 Mohsin Iqbal etc. Vs. HEC etc.
2. W.P.No.13427 of 2017 Ahmad Athar etc. Vs. HEC etc.
3. W.P.No.67287 of 2017 Hussain Ali Hashmi etc. Vs. HEC etc.
4. W.P.No.37325 of 2017 Muhammad Afzal etc. Vs. HEC etc.
5. W.P.No.30613 of 2017 Waseem Akram Ch. Etc. Vs. HEC etc.
6. W.P.No.21746 of 2017 M. W aqas Khan etc. Vs. HEC etc.
7. W.P.No.71964 of 2017 Yasir Mehmood Vs. HEC etc.
8. W.P.No.67652 of 2017 Muhammad W aqas Sarwar and another Vs. HEC etc.
9. W.P.No.68304 of 2017 Muhammad Sijawal Khan Vs. HEC etc.
10. W.P.No.32050 of 2017 Muhammad Rizwan Qamar etc. Vs. HEC etc.
11. W.P.No.67654 of 2017 Muhammad Tahir etc. Vs. HEC etc.
12. W.P.No.75390 of 2017 Tahir Yousaf and another Vs. HEC etc.
13. W.P.No.67315 of 2017 Shahzad Aslam Malik etc. Vs. HEC etc.
14. W.P.No.59525 of 2017 Asif Iqbal Vs. HEC etc.
15. W.P.No.82686 of 2017 Muhammad Usman Mashkoor etc. Vs. HEC etc.
16. W.P.No.87325 of 2017 Raza Hussain and another Vs. HEC etc.
17. W.P.No.102735 of 2017 Inam-ur-Rehman and another Vs. Government of Punjab etc.
18. W.P.No.45841 of 2017 Sajjad Hussain etc. Vs. HEC etc.
19. W.P.No.571 13 of 2017 Waheed Ullah and another Vs. HEC etc.
20. W.P.No.27955 of 2017 Imran Faisal etc. Vs. HEC etc.
21. W.P.No.37349 of 2017 Aqib Arshad etc. Vs. HEC etc.
22. W.P.No.97314 of 2017 Amir Hameed Butt etc. Vs. HEC etc.
23. W.P.No.46298 of 2017 Muhammad Ejaz Vs. HEC etc.
24. W.P.No.154567 of 2018 Muhammad Nadeem Akram etc. Vs. HEC etc.
25. W.P.No.154090 of 2018 Muhammad Salman Vs. Government of Punjab etc.
26. W.P.No.154295 of 2018 Azmat Ullah Bajwa etc. Vs. HEC etc.
27. W.P.No.216188 of 2018 Sajjad Ali Vs. HEC etc.
28. W.P.No.154094 of 2018 Muhammad Faisal etc. Vs. HEC etc.
29. W.P.No.244708 of 2018 Hamid Yaseen etc. Vs. HEC etc.
30. W.P.No.220551 of 2018 Saqib Rehman etc. Vs. HEC etc.
31. W.P.No.250545 of 2018 Hafiz Yasir Saleem and another Vs. HEC etc.
32. W.P.No.238875 of 2018 Naveed Hussain and another Vs. HEC etc.
33. W.P.No.239192 of 2018 Muhammad Naveed Shehzad and another Vs. HEC etc.
34. W.P.No.220633 of 2018 Muhammad Faisal Vs. HEC etc.
35. W.P.No.129834 of 2018 Muhammad Rizwan Anwar and another Vs. Govt. of Punjab etc.
36. W.P.No.231076 of 2018 Ali Raza etc. VS. HEC etc.
37. W.P.No.176904 of 2018 Abu Bakar Javed Vs. Govt. of Punjab etc.
38. W.P.No.157634 of 2018 Allah Yar Khan Vs. HEC etc.
39. W.P.No.220601 of 2018 Muhammad Sharan Javed etc. VS. HEC etc.
40. W.P.No.193992 of 2018 Adil Hussain Vs. HEC etc.
41. W.P.No. 22576 of 2019 Waheed-ul-Hassain Shah Vs. HEC etc.
42. W.P.No.23679 of 2019Muhammad W aseem Azhar etc. Vs. HEC etc.