SHAHID KHAN, J. Through the subject writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner, inter alia, seeks the following relief: "It is, therefore, most respectfully prayed that on acceptance of this writ petition, this Hon'ble Court be pleased to issue an appropriate writ by directing the respondent No. 3. i. To consider and include the marks of Darja Alia and Darja Alamiya equivalent to BA and MA respectively in the final merit list for the post of T.T and A.T. ii. To direct respondents to cancel final merit list and appointments thereon if made, and accordingly be declared as illegal without lawful authority and jurisdiction. iii. To consider and appoint the petitioner against post i.e. T.T and A.T. iv. Any other relief deemed appropriate but not specifically asked for may also be granted"
2. Facts in brief, forming the background of the subject writ petition are that official respondents advertised various posts including the posts of T.T & A.T. The petitioner being eligible & qualified applied for the post of T.T & A.T, lying vacant at serial No.4 & 5 of advertisement. Thereafter, she appeared in test, conducted by the respondents through NTS, wherein, she secured 68 marks out of
100. On 27.9.2018 she appeared for interview. On 29.12.2018, the respondent No.3 displayed tentative merit list, wherein, she was not awarded marks of Darja Alia & Darja Alamiya equivalent to B.A & M.A respectively. Thereafter, the respondent No.3 invited objections on tentative merit list and the petitioner accordingly submitted written objection through application, dated 05.01.2019 with the request to include marks of Darja Alia & Darja Alamiya but to no avail. On 12.01.2019, the respondent No.3 displayed final merit list, whereby, the petitioner was not awarded the marks of Darja Ali & Darja Alamiya, hence the subject writ petition.
3. We have heard learned counsel for the parties and scanned through the record, with their able assistance.
4. The record tells that the petitioner Mst. Asma Shaheen applied for the posts of Arabic Teacher & Theology Teacher (A.T & T.T BPS-15) and appeared in NTS test, whereof, she secured 68 marks and was interviewed on 27.9.2018. The petitioner was hopeful for her appointment against the post of T.T & A.T but the tentative merit list so displayed did not reflect marks of Darja Alia & Darja Alamiya.
5. The official respondents have claimed that the Sanad of Shahadat-ul-Alia is not recognized/ considered as equivalent to Bachelor Degree. According to Notification No.8-16/HEC/A&A/2012, Higher Education clearly denies the equivalency of Shahadat-ul-Alia to Bachelor Degree. So the petitioner is not liable to be given extra/additional marks for the said Sanad of Shahadat-ul-Alia.
Added, the above mentioned notification of HEC constitute that in order to recognize their Shahadat-ul-Alamia Degree as M.A, they needs to qualify in two additional subjects other than Islamiyat & Arabic.
6. There is no denial to the fact that the Higher Education Commission regards the certificate of Shahadat-ul-Almia Fil Uloomal Arabia wal Islamia awarded by Wafaq-ulMadaris Al-Arabia, Multan as equivalent to M.A Arabic / Islamic Studies for the purpose of teaching Arabic and Islamic Studies. In this regard, letter bearing No.8- 16/HEC/A&A/2013/3629 dated 5th September, 2013 issued by the Higher Education Commission is worth perusal, it reads as under: "Subject: Equivalence of Sanad "Shahadatul Almiya Fil. Uloomal Arabia wal Islamia" awarded by Wafaq ul Madaris Al-Arabia, Multan, Pakistan Dear Sir, With reference to your application dated July 25, 2013 on the subject, it is informed that as per decision of the Equivalence Committee of erstwhile UGC, the Higher Education Commission considers the Sanad "Shahadatul Almiya Fil Uloomal Arabia wal Islamia" awarded by Wafaq ul Madaris Al-Arabia, Multan, Pakistan as equivalent to MA Arabic/Islamic Studies for the purpose of teaching Arabic and Islamic Studies in College and Universities and for pursuing higher studies.
For employment in fields other than teaching, such Sanad holders would be required to qualify two additional elective subjects other than Arabic and Islamic Studies at the B.A level from a University. Further, they have to qualify the compulsory subjects of Pakistan Studies and Islamic Studies at the B.A level."
7. Similarly, the letter bearing No.8(16)/SAD/2021/HEC/ 3790 dated May 21, 2021 of the Higher Education Commission reads as under: "Subject: Equivalence of Sanad "Shahadatul Almiya Fil Uloomal Arabia wal Islamia" awarded by Wafaq ul Madaris Al Arabia, Multan, Pakistan Dear Sir, With reference to your application dated May 21, 2021 on the subject cited above, it is informed that as per decision of the Equivalence Committee of erstwhile UGC, the Higher Education Commission recognizes the Sanad "Shahadatul Almiya Fil Uloomal Arabia wal Islamia" held by you from Wafaq ul Madaris Al-Arabia, Multan, Pakistan as equivalent to MA Arabic/Islamic Studies involving 16-year of schooling for the purpose of teaching Arabic and Islamic Studies in Educational Institutions and for pursuing higher studies.
For equivalence of Sanad "Shahadatul Alia flu Uloomal Arabia wal Islamia" as Bachelor (Pass) degree involving 14-year of schooling, an applicant is required to qualify compulsory subjects viz English and Pakistan Studies at Bachelor (Pass) level from Allama lqbal Open University (AIOU) or any other chartered public sector university subject to provision of equivalence of Shanvia Aama and Sanvia Khasa from Inter Board Committee of Chairman (IBCC) as Matric and Intermediate, respectively."
8. Likewise, another letter bearing No.8(16)/SAD/2021/HEC/6010 dated August 16, 2021 issued by the Higher Education Commission reads as under: "Subject: Equivalence of Sanad "Shahadatul Alia fil Uloomal Arabia wal Islamia" awarded by Wafaq ul Madaris Al-Arabia, Multan, Pakistan Dear Sir, With reference to your application dated August 13, 2021 on the subject, it is informed that as per decision of the Higher Education Commission's Equivalence and Accreditation Committee, the Commission recognizes the Sanad "Shahadatul Alia Fil Uloomal Arabia wal Islamia" held by you from Wafaq ul Madaris Al-Arabia, Multan, Pakistan as equivalent to Bachelor (Pass) degree involving 14-year of schooling for the purpose of job and further study upon qualifying compulsory subjects viz English and Pakistan Studies at Bachelor (Pass) level from Allama Iqbal Open University (AIOU) and provision of equivalence of Sanvia Aama and Sanvia Khasa from Inter Board Committee of Chairmen (IBCC) as Matric and Intermediate, respectively.
An applicant who is intended to get admission in formal Master degree (other than Islamic Studies or Arabic) in a university after "Shahadatul Alia fil Uloomal Arabia wal Islamia" may opt any other two (02) elective subjects (other than Arabic and Islamic Studies) at Bachelor (Pass) level in addition to compulsory subjects (referred to above) as per his/her choice. He/she would also be required to fulfill all the requirements of admitting university. "
9. A bare perusal of the letters referred to above clearly suggests that the Sanad / degree of Shahadat-ul-Almia Fil Uloomal Arabia wal Islamia from Wafaq-ul-Madaris Al-Arabia, Multan, Pakistan is equivalent to M.A Arabic / Islamic Studies for the purpose of teaching Arabic and Islamic Studies. As the posts for which the petitioner had applied were non-other but teaching posts i.e. Arabic Teachers, so when the Higher Education Commission considers the subject degrees equivalent to M.A Arabic / Islamic Studies for the purpose of teaching of these subjects, then of course, it would carry marks as well. Similarly, the Sanad of Shahadatul Alia fil Uloomal Arabia wal Islamia has also been recognized by the Higher Education Commission equivalent to 14 years schooling for the purpose of job. Hence, in the circumstances, the Higher Education Commission has regarded the subject degrees equivalent to 14 years of education and M.A Arabic / Islamic Studies for the purpose of teachings and when additional marks have been allocated for M.A degree holders for the posts in question under the relevant rules, then it would be illogical, unjust, discriminatory and unreasonable to deprive holders of subject degrees from the marks allocated for the purpose, as such, it can safely be observed that the subject act on part of the respondents is unjust & uncalled for. Marks deducted should not have been so deducted and the degrees should have been considered for the purpose keeping in mind the factum of equivalency having been accredited by the Higher Education Commission.
10. Though, the respondents produced copy of letter dated 30.10.2018 issued by the Directorate of Elementary & Secondary Education Department Khyber Pakhtunkhwa and contended that the directorate has clarified the position that the subject degrees (Sanad) are only considered as professional eligibility against the posts in question and does not carry additional marks but we are confident enough to hold that when the Higher Education Commission has already considered the Sanads equivalent to 14 years of education as well as MA Arabic / Islamic Studies for the purpose of teaching, then the letter of the directorate has lost its value and even otherwise, the said letter has no force as that of law or rules as far as marking / weight-age is concerned. The acts of respondents to deduct the marks from the petitioner or not to consider such Sanads for the purpose of marking on the pretext that the said Sanad only determines eligibility criteria for appointment and has no other role to play in the marking are nothing, but nullity and illegality in the circumstances. It is imperative to state that the controversy of equivalency of Shahadat-ul- Almia Fil Uloomal Arabia wal Islamia to M.A Arabic / Islamic Studies for the purpose of teachings and its additional marks has already been settled by this Court in a number of cases. In this respect, reference can be made to the judgments passed in WP No.462-B/2017, WP No.649/2014, WP No.341-M/2014, WP No.49-A12019, WP No.196-A/2019, WP No.400-P/2019, WP No.122-M/2019 and WP No.1718- P/2017. So, the petitioner also deserve to be treated at par with those already treated in the above said writ petitions.
11. It shall be the Court to answer as to why the petitioner was deprived awarded the desired marks despite the fact that the qualification in possession of the petitioner was declared equivalent for the purpose of awarding additional marks. The respondents are yet to tell that when both the Sanads were blessed with equivalency and additional marks before and even after the present advertisement then, what led the respondents to decline the same to the petitioner. The worthy Assistant Advocate General wanted to build up his case by submitting that as in the advertisement, there was no mentioning of marks for the Sanads/qualification in possession of the petitioner, so the same was not awarded. In order to resolve the controversy, it is essential for the Court to go behind as to what were the rules and policy that are governing the subject. The learned counsel for petitioner invited the attention of this court to a policy prepared and pertaining to the year 2012 and also a schedule annexed thereto. In the policy, though no marks were mentioned but when the schedule was taken into consideration, there we found a formula regarding the calculation of marks and even in the relevant column, of both the qualifications, the criteria for awarding marks has been mentioned. Taking the same into consideration, no ambiguity is left that the purpose was to encourage the like qualification and that after the same having been declared as equivalent to its equals by the Higher Education Commission, we lurk no doubt in mind that the petitioner deserves the same conduct & behaviour and that the respondents should have awarded the marks reserved for the purpose. This is astonishing to note that in the subsequent advertisements, both the qualifications i.e. Shahadat-ul-Almia Fil Uloomal Arabia wal Islamia and Shahadat-ul-Alia Fil Uloom-ul-Islamia Wal Arabia have been blessed with marks. When the worthy Assistant Advocate General was confronted with this aspect of the case, he replied that as by then the advertisement was silent, so it was not awarded and that after the judgments of the superior courts came in its favour, then the respondent department started considering the same. We lurk no doubt in mind that the advertisement is always based upon the rules and policy and the criteria mentioned in the rules / policy is always taken into consideration. In this particular case, when the policy is clear and when a clear explanation has been provided in the schedule annexed with the policy, then no option is left with the respondents to decline the same. This apex Court time and again was pleased to pass judgments in this respect and even in the recent past, the superior courts of the country issued directions to the respondent department to consider the same.
12. The Court is conscious enough that it is not other than a grace to declare Sanads i.e. Shahadat- ul-Almia Fil Uloomal Arabia wal Islamia and Shahadat-ul-Alia Fil Uloomul-Islamia Wal equivalent to B.A, whereas, Shahadat-ul-Almia Fil Uloomal Arabia wal Islamia and Shahadat-ul-Alamiya Fil Uloom-ul-Islamia Wal equivalent to M.A and on this score alone the candidate is blessed with additional marks but it is hard fact that it is a temptation for the candidates to acquire Islamic (religious) knowledge, otherwise, it shall be hard in the near future to have a religious scholar in the society. It makes the Court to believe that the element of discrimination in this regard can safely be excluded. Reference in this regard can well be made to case title "Hadayatullah & others Vs. Federation of Pakistan" (2022 SCMR 1691) wherein it has been held that:- 240---Appointments to service of Pakistan---Principles of merit, non-discrimination, transparency and fairness---Article 240 of the Constitution is simply the bedrock on which appointments to the service of Pakistan are to be made; it is then the responsibility of the appointing authorities to ensure that appointments are made strictly in accordance with the relevant laws (including the applicable rules and regulations) that incorporate the principles of merit (selection through a competitive process), non-discrimination, transparency and fairness---Same principles apply to appointments on any post in public service since an organization can only best serve the people when all its employees are qualified individuals who are selected through a fair and transparent process---In the absence of dedicated supporting staff, no senior officer sitting at the helm of affairs can succeed in guiding the nation towards prosperity---However, it is significant that said principles are not merely fruit of judge made law but they also emanate from the fundamental rights enshrined in the Constitution, especially Article 18 (freedom of trade, business or profession) for which reason they occupy an immutable character."
13. It is evident from record that the respondents after realizing the mistake, they rectified the same and in the subsequent advertisements, both these Sanads i.e. Shahadat-ul-Almia Fil Uloomal Arabia wal Islamia and Shahadat-ul-Alia Fil Uloom-ul-Islamia Wal Arabia have been considered for award of marks for the posts of Arabic and Theology Teachers.
14. When no ambiguity is left and when the respondent departments have also realized this fact that both these qualifications deserving extra marks, so we are confident to hold that the petitioner has succeeded in making out a case for indulgence of this court. The respondents are directed to treat the petitioner as others similarly placed were treated and to consider the claim of the petitioner for awarding marks reserved for the purpose and thereafter, determine the claim of the petitioner regarding her appointment against the posts she applied for.