ABDULLAH BALOCH, J. The instant Constitutional Petition filed by the petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, ("the Constitution"), carries the following prayer: It is, therefore, respectfully prayed that this Hon'ble Court may graciously be pleased; a. To declare that the introduce policy with regard to eligibility criteria for scholarship of Ph.D. Law under Endowment Fund for Lawyers/Law Graduates to seek higher studies abroad/inland i.e. the policy 2023' does not have any retrospective effect upon the petitioner. b. As such, the introduce act of the respondents by no consider the case of the petitioner for Ph.D. program in its meeting held on 24th August, 2023 in garb of said policy is highly illegal and unlawful. c. To set aside the impugned minutes dated 24th August, 2023 to the extent of petitioner. d. To direct the respondents to consider the petitioner for Ph.D. Law program. e. Any other relief which this Hon'ble Court deems fit and proper may also be awarded in favor of petitioners, in the interest of justice, equity and fair play."
2. Brief facts of the instant petition are that the petitioner is an advocate by profession and is duly enrolled with Balochistan Bar Council and obtained the LLM degree from the University of Aberdeen U.K. in the academic Sessions 2021-22; that the Balochistan Education Endowment Fund ("BEEF") through advertisement dated 10th January 2023 invited applications from the lawyers for scholarships in LLM, Bar-at-Law and Ph.D Law. The petitioner being eligible candidate submitted his documents for Ph.D Law and also completed the paper work and also appeared in the interview and meetings online with the Panel of Supervisor to get admission in Ph.D. Law in the University of Hull, U.K., as such, the petitioner was unconditionally considered and in this regard an offer letter was also issued in his favour. Subsequently, on receipt of offer letter, the petitioner submitted the same with the respondent No.2 for his consideration according to the publication dated 10th January 2023. While, the office of respondent No.2 after scrutinizing the documents convened its meeting on 27th May 2023; wherein the petitioner submitted an application before the Chairman Education Committee averred therein that the petitioner had also been considered for LLM program in the UK under the BEEF in the year 2021, which was completed in January 2022, however, while availing the LLM program, the petitioner had sworn upon an affidavit that on completion of his LLM program he would return and serve for two year in the province of Balochistan, as such, the said period would be completed in January 2024, whereas before completion of said period, the respondent No.2 invited applications for Ph.D. Law, as such, the petitioner filed an application requested therein that his case be recommended and forwarded to the Board of Directors ("BoDs") for approval and also requested that if the petitioner is not considered for admission under the BEEF program in September 2023, the case of petitioner be permitted to join the university in January 2024.
3. It is further averred in the petition that the Board of Directors convened its meeting on 13th June 2023; wherein eight (08) applications were placed before the BoDs. It is pertinent to mention here that the petitioner was only the candidate, who was eligible for the Ph.D. Law program, but the name of petitioner was not placed before the BoDs meeting, however, he was called for interview and his case was deeply discussed, when the minutes of meeting were passed, but surprisingly the name of petitioner was missing and it was left anonymously that whether the case of petitioner was approved or otherwise. It is worthwhile to mention here that the BoDs on 13th June 2023 approved some policy including eligibility criteria policy (scholars having already availed scholarship under this program are not eligible to apply again in any form), but this policy was not discussed in the 1st meeting of 2023 of Education Committee and the advertisement is also silent in this regard. Subsequently, on 24th August 2023 another BoDs meeting was convened and the case of petitioner was also placed in the meeting; whereby the respondents amended the earlier policy for the eligibility criteria with regard to scholarship under the BEEF program; wherein it was held that; Scholars having already availed scholarship under this program shall only be eligible to avail scholarship again after a period of five years from completion of their previous degree, vide impugned, minutes dated 24th August 2023; thus the petitioner was deprived from his legal rights, hence he preferred the instant petition.
4. Learned counsel for the petitioner contended that the respondent No.2 i.e. Balochistan Education Endowment Fund ("BEEF") invited application through publication for scholarships of LLM, Bar-at- Law and Ph.D. for the Session Fall-2023; that the petitioner being eligible qualified LLM, applied for the position of Ph.D. scholarship amongst others; that the petitioner also appeared before the commission as well as board, when the cases were processed; that the petitioner was only candidate, who qualified for Ph.D. scholarship and fulfilled all requirement of advertisement; that the respondents initially recommended the petitioner for the said scholarship, but later on with malafide intention the board did not approve the case of petitioner by introducing a new policy 2023; whereby condition of five years period is required for Ph.D. was imposed after availing 1st Scholarship, the said policy having no retrospective effect; that the petitioner is deprived from his legitimate rights, which are guaranteed by the Constitution of Islamic Republic of Pakistan, 1973; that the decision of the respondents is illegal, unlawful and without any legal effect, which is liable to be declared as null and void.
5. Conversely, the learned AAG assisted by Mr. Baloch Khan, Advocate counsel for BEEF strongly opposed the contentions so raised by the learned counsel for the petitioner and contended that the petitioner has failed to fulfill the required condition i.e. after availing scholarship of LLM to serve the province of Balochistan for two years according to the surety bond furnished by the petitioner at the time of availing the scholarship of LLM; that the board now introduced another policy for scholarship of Ph.D. i.e. after five years period is required for next scholarship after obtaining 1st scholarship; that the tenure of petitioner will be completed in the month of February 2024, thus the case of petitioner is premature as he has not completed two years of service in the province of Balochistan after passing his LLM; that the petition is liable to be dismissed.
6. Heard learned counsel for the parties and perused the record with their able assistance, which reveals that the respondent No.2 i.e. Balochistan Education Endowment Fund ("BEEF") invited applications through publication for Inland/Abroad Scholarships of LLM, Bar-at-Law and Ph.D. from the practicing lawyer of Balochistan for Session Fall-2023 through press publication dated Nill with the following eligibility criteria: Foreign Scholarships for Study from UK Indigenous/inland ScholarshipOverall General Eligibility Criteria Programs:
1. LLM
2. Bar-at-Law
3. PhDPrograms:
1. LLM
2. PhD
1. Must have Local/Domicile of Balochistan
2. Must have a valid Balochistan Bar Council License with 2 (two) years' practicing experience till the closing date of the advertisement.
3. Must have passed HEC LAW GAT
4. Must have passed LLB and degree/transcript/equivalence should be duly attested and verified from HEC.
5. Must give a surety bond in the shape of personal guarantee of a Gazetted (BS-17 or above) officer that the selected Lawyer shall complete the degree program and return back to serve the province of Balochistan for 2 (two) years.Specific Eligibility Criteria for study from UKSpecific Eligibility Criteria for Inland Study I. Must have valid IELTS with aggregate score not below 6.5 bands overall. (This is a mandatory requirement regardless of the requirement of the concerned University.)
II. Must have an unconditional offer letter for the desired program for session Fall-2023 from any of the topranking Universities of UK.I. Must have un- conditional offer letter from any HEC recognized University of Pakistan for session Fall-2023.
7. Cut-off date for filing of applications was 2nd May 2023, however, the same was extended to 12th May 2023, the petitioner being qualified LLM applied for the scholarship of Ph.D. and after due process of his application appeared before the commission and the case of petitioner was placed before board in its 2nd meeting held on 27th May 2023; whereby at Agenda No.2 i.e. Scrutiny and Shortlisting of Candidates for Higher Studies in Law from UK Fall 2023 Session". While at serial No.4 of table in the column of remarks the following observation have been made: "He has yet to fulfill the requirement of serving Balochistan for 2 years as he completed LLM from UK previously through this Fund. No ILETS. "
8. Record further transpires that the 12th Meeting of Board of Directors Lawyers' Endowment Fund held on 13th June 2023; wherein no case of Ph.D. scholarship was placed before the board to decide the fate. However, in the working papers of 12th Board meeting at Serial No.7 the name of petitioner was inserted and in the column of total experience it is mentioned as under: "4 years 7 months after completion of LLM from UK, he had to serve for a period of 2 years completing in January 2024."
9. The minutes of meeting further reflects that Rs.10.711,916 have been reserved for 1st year expenses its mean the case of petitioner was recommended for approval of the board and the requisite amount of his scholarship was also reserved for 1st year, but unfortunately the board introduced a new policy at Serial No.7 for Lawyers Endowment Fund for higher studies Inland or Abroad with the following changes, which is reproduced as under: "The Board made following changes in the policy:
1. In the Clause 10 Eligibility Criteria, sub-clause 10.7 "Scholars having already availed scholarship under this program are not eligible to apply again in any format."
Following shall be substituted: "Scholars having availed scholarship once under this program shall only be eligible to avail scholarship again after a period of five (5) years from completion of their previous degree."
10. Minutes of the board meeting at serial No.8 further reflects that the board did not consider the case of petitioner as he has already availed scholarship once through this program. It is further added that he may apply again for this scholarship after the completion of five (5) years.
While, the member of board from the Balochistan Bar Council Advocate Rahib Buledi recorded his dissent on this matter.
11. We dismayed to observe that the change of policy by the board in 13th Meeting held on 24th August 2023 smell with the mala fide intention and ulterior motives because initially the advertisement appeared in the month of December 2022; whereby the applications invited from the candidates on the basis of overall general eligible criteria and the same was very much mentioned in the said advertisement and the candidates applied for such scholarship in different categories i.e. Bar-at-Law, LLM and Ph.D. on the basis of said advertisement and in continuation of said process of the cases of candidates pertaining to Bar-at-Law and LLM have been approved and decided without any precondition of new policy except the case of petitioner was declined due to imposing and introducing new policy with five years condition after availing the first scholarship, which in our view is neither having any statutory backing nor the board was justified to impose a new condition with retrospective effect in the cases of past and close transactions, which were announced before the approval of new policy and such retrospective effect of policy is not only ultra-vires of constitution, but also against the policy of Government of Balochistan especially the BEEF for the provision of higher education of lawyers of Balochistan Inland or Abroad to meet the future requirements of the legal profession to compete with the other provinces and serve the people of Balochistan in the higher and superior judiciary.
12. It is worth to mention here that once the candidates have applied for a position through a due process of law, the subsequent proceedings cannot adversely effects the rights of candidates already accrued to them for the said position after due process of law and their cases are protected on the principle of past and closed transaction was evolved to protect and safeguard the accrued and vested rights of the parties under a statute which subsequently is found and declared ultra vires for the simple reason that such declaration is always prospective unless the Court specifically gives to such declaration, a retrospective effect, by declaring the statute as non est i.e. never existed in the eyes of law. Reliance in this regard is placed in the case of "Muhammad Moizuddin and another v. Mansoor Khalil and another, 2017 SCMR 1787" wherein the Hon'ble Supreme Court of Pakistan held as under: "10. The concept of past and closed transaction was evolved to protect and safeguard the accrued and vested rights of the parties under a statute which subsequently is found and declared ultra vires for the simple reason that such declaration is always prospective unless the Court specifically gives to such declaration, a retrospective effect, by declaring the statute as non est i.e. never existed in the eyes of law. Reference can readily be made to the judgments of this Court in the cases titled Al-Samrez Enterprise v. Federation of Pakistan (1986 SCMR 1917), Molasses Trading and Export (Pvt.) Ltd. v. Federation of Pakistan (1993 SCMR 1905), Mehram Ali v. Federation of Pakistan (PLD 1998 SC1445), Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602), Hussain Badshah v. Akhtar Zaman (2007 PLC (C.S.) 157), Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) and Al-Tech Engineers and Manufacturers v.
Federation of Constitutional Petition No.1548 of 2023 Pakistan (2017 SCMR 673). Beside the effect of past and closed transaction in cases where the statute is found to be ultra vires the Constitution, was examined by a five member Bench of this Court in the case of Shahid Pervaiz v.
Ejaz Ahmed (2017 SCMR 206)".
13. It has further been observed that the petitioner applied for the scholarship of Ph.D. and entirely fulfilled the overall general eligibility criteria based on previous policy duly mentioned in the said advertisement and thereafter his case was processed and he was the only candidate of Ph.D., who qualified for such position of scholarship at abroad and the requisite existence of scholarship was approved and reserved in the meeting of Board and the vested rights has been accrued in favour of petitioner and the subsequent announcement of new policy of August 2023 does not having retrospective effect on the case of petitioner, which pertains to terms and conditions of previous policy and the conditions whereof entirely mentioned in the initial advertisement of 2022-23 and all such conditions have been met by the petitioner, thus his case falls within the principle of past and closed transaction. Reliance in this regard is placed on the case titled as "Hussain Badshah and another v. Akhtar Zaman and others, 2007 PLC (C.S.) 157" wherein the Hon'ble apex Court has held as under: "5. Adverting to the appeals directed against judgment, dated 30-5-2000 passed by D.1. Khan Bench of the Peshawar High Court, it may be observed that the declaration to the effect that all appointments made under the earlier policy are illegal, void and without lawful authority is difficult to sustain being against the law as the judgment, dated 12-5-2000 would operate prospectively and not retrospectively adversely affecting the rights already accrued to the teachers appointed before the declaration of law by Full Bench of the High Court. Admittedly, appointments made prior to the said judgment were neither inherently illegal nor ultra vires the law. These appointees were amongst the candidates who qualified from Elementary P.T.C. Colleges of N.-W.F.P., Allama Iqbal Open University, Islamabad and other Institutions on merits and having regard to the qualifications obtained by such persons. Many of the appellants were even not party to the writ petitions before the High Court, therefore, their vested rights cannot be lightly disturbed to their disadvantage. Their case is protected by the doctrine of past and closed transaction, which cannot be reopened. We are fortified in this view by the dictum laid down in Attiyya Bibi Khan (supra) at page 1183 of the report and Zaffar Ali Shah v. Federation of Pakistan PLD 2000 SC 869 relevant on page 1211."
14. Thus, in view of the above, we restrain ourselves to declare the entire new policy of August 2023 as null and void, but just to hold that the said policy having no retrospective effect from its born to create any hurdle in the case of petitioner in any manner. In this regard we are fortified by the principles laid down by of Hon'ble Supreme Court of Pakistan in the case titled as "Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others, PLD 2014 Supreme Court 531" as under: "75. Mindful of Court's constitutional mandate and institutional constraint in a system based on trichotomy of powers; the Court would restrain itself from making any declaration which amounts to rewriting the law. However, when it comes to the conclusion that a law or certain provision therein is not in conformity with the constitutional provisions and declares it ultra vires of the Constitution, it can issue appropriate directions to the Government to bring the law in conformity with those provisions."
For the reasons discussed hereinabove, the petition is accepted by declaring that the new policy of 2023 having no retrospective effect as well as condition of two years' service after LLM is directory in nature having no statutory backing, thus does not effect the case of petitioner. The petitioner is entitled for grant of Ph.D. scholarship. Thus, in view of the above, the Chairman, Board of Directors BEEF is directed to convene the Board meeting within two weeks from the date of announcement of this judgment to grant scholarship to the petitioner, compliance report be submitted to Registrar of this Court for our perusal in Chamber.