M IANGUL HASSAN AURANGZEB, J:- Through the instant regular first appeal, the appellants, Wasim Abbas and his father, Ziafat Hussain, impugn the judgment and decree dated 29.05.2015 passed by the Court of the learned Civil Judge, Islamabad, whereby the suit for recovery of US Dollars 41,704 filed by the Higher Education Commission ("HEC") against the appellants, was partially decreed to the extent of the amount of expenses that were incurred on appellant No.1's study abroad.
2. Learned counsel for the appellants drew the attention of the Court to clause viii of the agreement dated 14.11.2006 (Exh.P1) and submitted that the scholar was required to return to Pakistan immediately after the completion his master's program, and on-the-job training in a leading Korean Industry; that appellant No.1 was also required to serve in a public sector university / Research and Development ("R&D") organizations in Pakistan for two years; that clause ix of the said agreement provided that the scholar shall contact HEC immediately upon his return to Pakistan and would inform HEC about his employment / posting with the date of joining; that HEC did not provide an air ticket to appellant No.1 to return to Pakistan; that the terms of the scholarship under the project tilted, "MS Level Training in Korean Universities / Industry" required the HEC to provide a stipend of US Dollars 400 per month for a period of 24 months as well as tuition fees of US Dollars 8,000 per year for two years to the scholar; that the HEC was also required to provide an economy class return ticket to the scholar once during the tenure of MS Engineering Program; that vide email dated 17.12.2008, appellant No.1 called upon HEC to send him his stipend for the next two months; that appellant No.1 travelled by air to Lahore to fulfill the terms of the said agreement dated 14.11.2006; that the air ticket was not provided by HEC but purchased by appellant No.1; that the terms of the surety bond furnished by appellant No.1 required him to serve in Pakistan for a period of two years as may be directed by the Federal Government through HEC; that although appellant No.1 proceeded abroad within one year of his return to Pakistan but that was because neither the Federal Government nor the HEC had offered him any employment; and that appellant No.1 had not breached any of the terms of the agreement dated 14.11.2006 nor the terms of the surety bond. Learned counsel for the appellants prayed for the appeal to be allowed and for the judgment and decree dated 29.05.2015 to be set-aside.
3. On the other hand, learned counsel for HEC submitted that appellant No.1 did not report to HEC upon his return to Pakistan; that appellant No.1 did not produce his passport to show that he had returned to Pakistan; that in terms of clause ix of the agreement dated 14.11.2006, appellant No.1 was required to inform HEC about his return to Pakistan and about obtaining employment in Pakistan; that although appellant No.1 did come to Pakistan but went back within one year in search for employment in a foreign country; and that since appellant No.1 had breached the conditions of the agreement dated 14.11.2006 as well as the surety bond, he is liable to return all the amount that had been expended on him for his studies in Korea. Learned counsel for HEC prayed for the appeal to be dismissed.
4. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.
5. The record shows that appellant No.1 had been selected by HEC for the award of a scholarship for a master's degree under the scheme known as "MS Level Training in Korean Universities / Industry." On 14.11.2006, an agreement (Exh.P1) was executed between appellant No.1 and the HEC setting out the terms and conditions of the scholarship awarded to appellant No.1. The terms of the said agreement show that the scholarship was valid for a period of one year and could be renewed up to a maximum duration of 24 months subject to the scholar's satisfactory academic performance. Clauses viii and ix of the said agreement are reproduced herein below:- "viii) The scholar shall return to Pakistan, immediately after the completion of Masters program (in approved field) and on-the-job training in one of leading Korean Industry. The scholars will serve public sector universities /R&D organizations in Pakistan, for 2 years. ix) The Scholar shall contact HEC immediately after his/her return to Pakistan and would inform about his/her employment/posting with date of joining."
6. Appellant No.2, Ziafat Hussain, had executed a guarantee (Exh.P2) in favour of the HEC to the effect that he would pay the penalty and compensation as prescribed and assessed by the HEC which appellant No.1 may be called upon to pay for breach of any of the terms and conditions of the agreement dated 14.11.2006. Appellant No.1 had also executed a surety bond (Exh.P4) to the effect that he shall successfully complete his studies / training and shall immediately return to Pakistan to serve here for a minimum period of two years "as may be directed by the Federal Government through the Higher Education Commission."
7. The sole allegation made by the HEC in its two-page suit against the appellants was that appellant No.1 had violated the terms and conditions of the agreement dated 14.11.2006 by failing to serve in Pakistan for the mandatory period. For the purposes of clarity, paragraph 4 of the said suit is reproduced herein below:- "That the defendant No.1 violated the terms and conditions of the agreement by failing to service in Pakistan for mandatory period according to the terms and conditions of the agreement, and the defendant No.1 was asked to refund the amount spent on his studies through different letters and the legal notice dated 22-7-2010 followed by a reminder dated 5-8-2010 to the defendants for the refund of the amount of USD 41704/- but the same has not been acknowledged so far and no amount was refunded by the defendants, hence this suit."
8. The HEC had sought the recovery of US Dollars 41,704 failed to serve in Pakistan for the mandatory period stipulated in the agreement dated 14.11.2006. In the said suit, it has not been pleaded that appellant No.1 did not return to Pakistan or failed to report to HEC on completion of his studies in South Korea.
9. In the written statement, appellant No.1 accused the HEC of violating the terms of the agreement dated 14.11.2006. It was pleaded that the HEC had forced appellant No.1 to return to Pakistan without completing his education; that HEC had withheld appellant No.1's stipend for two months amounting to US Dollars 1,400 and also failed to provide him an air ticket for his return to Pakistan; and that appellant No.1 visited the HEC many times seeking employment but to no avail.
10. The vital question that needs to be answered is whether appellant No.1 had violated clause viii of the agreement dated 14.11.2006 which requires him to serve in public sector universities/R&D organization in Pakistan for two years after the completion of his scholarship. It is an admitted position that after appellant No.1's return to Pakistan, he did not serve for a period of two years in such organizations. There is also no document on the record to show that appellant No.1 applied to gain employment either in a public sector university or a R&D organization in Pakistan. Clause viii of the agreement dated 14.11.2006 is premised such that there were jobs waiting for appellant No.1 ' in public sector universities and R&D organizations in Pakistan upon his return to Pakistan. The said agreement does not obligate him to apply for employment in such organizations. The HEC brought noting on the record to show as to where appellant No.1 could have applied and got a job for two years in such organizations. I find clause viii of the said agreement to the extent of requiring appellant No.1 to serve in such organizations for two years to be vague. I say so because the said agreement does not require appellant No.1 to serve against a certain post in such organizations identified by the HEC. The ambiguity in clause viii of the said agreement is to be resolved by reference to the terms of the surety bond furnished by appellant No.1 which requires him to "serve within Pakistan for a minimum period of two years as may be directed by the Federal Government through the Higher Education Commission." Learned counsel for the HEC could not controvert the assertion made by the appellants that the Federal Government or the HEC had not directed appellant No.1 to serve against any particular post in any public sector university or R&D organization in Pakistan. Appellant No.2 had appeared as DW-1 and in his cross-examination had deposed that appellant No.1 had tried to gain employment in Pakistan but had not been successful in this regard.
11. Apparently, the terms and conditions of the agreement dated 14.11.2006 are in the nature of a standard form contract which the HEC enters into with scholars sent abroad on scholarships. This Court, vide judgment dated 16.03.2022 passed in R.F.A. No.498/2021, while interpreting clause viii of the agreement, held as follows:- "It is also evident from the deed of agreement that the object of requiring scholars to return to Pakistan after completion of their degree programs was to prevent brain-drain and to encourage scholars to employ their skills in the public sector in Pakistan after having received state-funded education abroad. The obligation to return to Pakistan and serve here did not come with a guarantee from HEC or the State to afford employment opportunities to all HEC scholars.
Consequently, to the extent that a scholar returned to Pakistan and could not find employment within the public sector as envisaged in the deed of agreement, it could not be held that such scholar had breached the provisions of the deed of agreement. In order to establish that a scholar breached his obligation to serve a public sector university or R&D organization in Pakistan, it would be for the HEC to establish that such scholar was not ready and willing to discharge such obligation even in the presence of an employment opportunity in a public sector university or R&D organization in Pakistan. The appellant in the instant case has not taken a position that there was an employment opportunity available to respondent No.1 within a public sector university or R&D organization and despite such opportunity respondent No.1 failed to undertake such employment for a period of two years as required by the deed of agreement. The position taken by the appellant is that the appellant was under no obligation to provide an employment opportunity to respondent No.1 or any other scholar. Consequently, in the absence of any employment opportunity the appellant has no basis to recover the funds expended on the scholar's education under the deed of agreement. As the appellant failed to establish through evidence produced before the learned Civil Court that respondent No.1 either failed to return to Pakistan in compliance with his obligation under the deed of agreement or failed to take up employment in a public sector university or in an R&D organization in Pakistan for a period of two years when such opportunity was available to him, the learned Civil Court rightly held that the appellant has failed to establish its claim for recovery against respondent No. 1."
12. When appellant No.1 came to the HEC for the collection of his degree (which has not been denied by the HEC), the HEC should have directed him to serve at a particular post in a public sector university or R&D organization. If the Federal Government or the HEC had directed appellant No.1 to serve against a particular post in a public sector university or a R&D organization in Pakistan and had appellant No.1 not complied with said direction, HEC would have been entitled to be refunded the entire amount spent on appellant No.1's education/training abroad.
13. In view of the above, the instant appeal is allowed, and the impugned judgment and decree dated 29.05.2015 is set-aside. Consequently, the suit instituted by the HEC against the appellants is dismissed. There shall be no order as to costs.
14. Before parting with this judgment, I feel the necessity to observe that the agreements that the HEC executes with scholars to whom scholarships are granted to studies abroad are vague, uncertain and ambiguous. Such slipshod agreements result in an unnecessary and wasteful litigation and make the recovery of amounts expended on such scholars difficult. It would be in the fitness of things if the HEC has such agreements drafted or vetted by professional lawyers of repute or the Law and Justice Division. Office is directed to serve a copy of this judgment on the Chairman, HEC.