PLJ 2021 SC 92
Constitution of Pakistan, 1973--
----Art. 212(3)--Issuance of notification--Grant of M.Phil degree allowance--Entitlement of M.Phil allowance for holders of equivalent degree--Scope of notification--Determination of equivalence--Issuance of letters by H.E.C. regarding eligibility of MS degree holders for grant of M.Phil allowance--Mandate of H.E.C.--Excess of jurisdiction--Challenge to--Counsel for respondents has not been able to convince us that holders of equivalent degrees should also be held entitled to M. Phil allowance which was clearly not intention of notification--High Court was called upon to interpret meaning and scope of notification however it exceeded its jurisdiction by reading additional words into notification which under facts and circumstances was neither necessary nor required--All those who hold M.Phil or MS degrees would be eligible to draw HEC allowance @ Rs. 2500/- per month--There is neither power nor authority under H.E.O. to issue any such letter or clarification as mandate of HEC is limited only to academic matters and determining equivalence for academic reasons--High Court erred in law in relying upon letters issued by HEC/University Grants Commission (defunct) which was clearly beyond its mandate in granting relief to respondents--Some of them have M.Phil degrees and have been refused or that employees holding degrees other than M.Phil have been allowed such allowance--If certain actions have been done in a certain Province(s) within powers available to them under Constitution, it is not necessary that same be replicated in all other Provinces--High Court incorrectly dealt with question of treating letters issued by HEC as very basis for its direction for payment of M.Phil allowance to other employees whose degrees had been declared equivalent in academic terms to an M.Phil degree--Such interpretation is clearly against intent, purpose and plain language of notification which could not have been done and High Court clearly exceeded its jurisdiction in doing so--Further, having not found any discrimination on any of grounds asserted by respondents judgment of High Court is not sustainable on that ground either--Appeal was allowed.
[Pp. 97, 98 & 99] A, B, C, D, E & F
Mr. Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa, Mian Saadullah Jandoli, Advocate-on-Record (absent), Mr. Shafiullah, Deputy Director (Legal), Mr. M. Imran, Deputy Director, Agriculture, Mr. M. Arif, L.O., Archaeology, Mr. Tauheed Iqbal, A.D. and M. Ilyas Khan (Sr. Statistician) for Appellants.
Mr. Khalid Rehman, ASC for Respondents (in C.A. No. 189 of 2020).
Mir Afzal Malik, ASC for Respondents (in C.A. No. 193 of 2020).
Mr. M. Adeel Qureshi, Sajid Khan and Ehtasham (all in person).
Nemo for Respondents (in other cases).
Date of hearing: 15.7.2020.
PLJ 2021 SC 92
[Appellate Jurisdiction]
Present: Gulzar Ahmed, C.J., Ijaz-ul-Ahsan and Mazhar Alam Khan Miankhel, JJ
versus
FARASATULLAH and others--Respondents
C.As. Nos. 188 to 193 of 2020, decided on 15.7.2020.
(Against the judgments dated 07.02.2018, 20.06.2019, 19.09.2019, 21.11.2019, 30.10.2019 and 24.10.2019 passed by the Peshawar High Court, Peshawar and Peshawar High Court, Abbottabad Bench in
Writ Petitions Nos. 2243-P/17, 4328-P/18, 1472-A/18, 4595-P/17,
3952-P/18 and 4397-P/2019)
Judgment
Ijaz-ul-Ahsan, J.--Through this single judgment, we propose to decide Civil Appeals Nos. 188, 189, 190, 191, 192 and 193 of 2020 as common questions of law are involved in this matter.
2. Leave to appeal was granted by this Court vide its order dated 02.03.2020 which for ease of reference is reproduced below:
"Learned Additional Advocate General, KP contends that the respondents, who were holding the LLM Degree have claimed M.Phil allowance by filing of a writ petition on the basis of equivalence. He contends that such being the matter relating to the terms and conditions of service, the writ petition filed by the respondents in the Peshawar High Court was patently barred in terms of Article 212 of the Constitution and the High Court was not competent to entertain the writ petition. He further contends that the M.Phil allowance was given specifically to the employees who possessed M.Phil Degree and such allowance could not have been extended to the holders of the LLM Degree for the reason that the concerned Notification did not provide for the same and neither did the University Grants Commission nor the Higher Education Commission have any jurisdiction to grant the benefit to the government employees, for that, their jurisdiction is only to the extent of granting equivalence, and even after granting the equivalence, whether the allowance is to be paid or not to be paid to certain employees, only the Government is competent to make policy on that, which policy could not be interfered with by High Court while exercising its writ jurisdiction.
2. The contentions raised by the learned AAG require consideration. Leave to appeal is granted to consider, inter alia, the same. The appeal shall be heard on the available record but the parties are allowed to file additional documents within a period of one month. As the matter relates to service, the office is directed to fix the same expeditiously, preferably, after three months."
3. The main controversy involved in these appeals relates to notification dated 14.07.2016 issued by the Secretary, Government of Khyber Pakhtunkhwa Finance Department through which an allowance @ Rs. 2500/- per month was granted to the employees who held M.Phil degrees. The said notification was challenged by the Respondents before the Peshawar High Court praying that the Respondents may also be granted the M.Phil allowance because they held qualification which were equivalent to M.Phil, these included employees having LLM degrees and MS degrees in Agriculture etc. The High Court allowed the petitions and directed the Appellants to grant M.Phil allowance to all employees who held any degree equivalent to M.Phil i.e. LLM and MS in Agriculture from the date of acquiring such degree. The High Court based its judgment on a letter of the University Grants Commission (UGC) dated 23.08.2000 stating that Master of Law degree was equivalent to M.Phil.
4. The learned Additional Advocate General, Khyber Pakhtunkhwa submits that in the first place University Grants Commission and Higher Education Commission do not have the mandate either to interpret notifications issued by the various Governments nor to direct or advise the Government to give financial benefits on the basis of equivalence certificates as has been done by it vide its letter dated 23.05.2017. He maintains that the mandate of Higher Education Commission in terms of Section 10 of the Higher Education Commission Ordinance, 2002 is to grant equivalence certificates only for the purposes of determining academic equivalence with reference to time spent in pursuing a degree or for getting admission for further education. Further, he maintains that even according to its own position as reflected in its letter dated 28.11.2016 an equivalence certificate issued by the Higher Education Commission does not guarantee admission in a University for further education and determination of suitability in relation to job requirements which decision rests with the concerned University and employing agency and that Commission has no role in such matters. He further maintains that the law does not confer any power in the Higher Education Commission to recommend payment of allowances or other financial benefits. He argues that the learned High Court misdirected itself and misinterpreted not only the law but also its purpose, scope and intent and its reliance on different certificates/letters issued by the Higher Education Commission in granting relief was clearly misplaced.
5. The learned counsel for the Respondents, on the other hands, submits that once the Higher Education Commission grants an equivalence certificate to any qualification/degree, the holder of such qualification/degree automatically becomes entitled to grant of allowances/benefits which have been granted to holders of equivalent degrees/qualifications. It is further argued that the Governments of the Provinces of Punjab, Sindh and Balochistan have issued similar circulars and provided similar allowances and it is only the Government of Khyber Pakhtunkhwa which is refusing to do so. This constitutes discrimination and the High Court is justified in bringing the situation at par with other Provinces.
6. We have heard the learned Additional Advocate General, Khyber Pakhtunkhwa as well as the learned counsel for the Respondents.
7. It is clear and obvious to us that the language of impugned notification dated 14.07.2016 is clear and unambiguous and does not admit of any other interpretation. For ease of reference, the relevant portion of the notification in question is reproduced below:
"Subject: GRANT OF M.PHIL ALLOWANCE @ 2,500/ - PER MONTH
Dear Sir,
The Competent Authority, is pleased to decided that, all those who acquires/possesses the degree of M.Phil recognized by the H.E.C. shall be allowed M.Phil allowance @ 25% of the existing amount of Ph.d allowance (@ Rs. 2,500/- per month) with effect from 01.07.2016 subject to the following conditions:
a) M.Phil allowance will not be admissible to those who are getting Ph.D allowance @ Rs. 10,000/ - per month.
b) M.Phil allowance will not be admissible to those who have already got the benefit of advance increments possessing on/ acquiring M.Phil degree prior to 01.12.2001 under Finance Department circular letter No. FD(SR-I)/1-67/82 dated 24.08.1983".
8. A plain reading of the notification makes its abundantly clear:
1) The intent of the Competent Authority is to grant M.Phil allowance @ of existing amount of Ph.D allowance @ Rs. 2500/- per month;
2) The allowance in question is not admissible to those who are already getting Ph.D. allowance @ Rs. 10,000/-: per month;
3) The M.Phil allowance is specifically meant for persons who hold M.Phil degrees which are recognized by the Higher Education Commission;
4) It is not expressly or by implication mentioned in the notification in question that the allowance -will be payable to all who hold an "M.Phil or equivalent degree".
10. The learned counsel for the Respondents has heavily relied on a letter dated 23.05.2017 issued by the Higher Education Commission, the relevant portion. of the letter is reproduced below:
"4. According to above referred Office Memorandum of Govt. of Pakistan, Finance Division, the M.Phil allowance is granted to those only who acquire/possess the degree of M.Phil recognized by the HEC. However, in view of the above mentioned clarification, all those who have M.Phil or MS degrees (18 years schooling) should be eligible to draw the allowance @ Rs. 2500/- per month".
13. We are also not impressed by the argument advanced by the learned counsel for the Respondents that the notification in question is discriminatory in nature in so far as it does not grant equal financial benefits to holders of equivalent degrees. Further, it is discriminatory because similar allowances have been granted by different Provinces which have been denied to the Respondents. As far as the first argument is concerned, the same is misconceived. There is intelligible differentia between holders of M.Phil degrees and those who do not hold such degrees. Holders of M.Phil degrees in different disciplines constitute a class by themselves and can be granted incentives without offering similar incentives to holders of equivalence certificates from HEC. To hold otherwise would in effect negate and nullify the very concept of the rule of "intelligible differentia". A class of employees who hold M.Phil degrees have been earmarked for grant of an allowance which has specifically been called and termed as "M.Phil allowance". All those who fulfil the requirement of the notification have been granted the allowance and are entitled for the same. It is not the case of the Respondents that some of them have M.Phil degrees and have been refused or that the employees holding degrees other than M.Phil have been allowed the such allowance. In the absence of the aforenoted situations the argument of discrimination must fail.
"17. As regards the question of discrimination, it may be pointed out that each Province is empowered and entitled to make its own decision regarding the subjects that fall within their respective domain in accordance with their own circumstances. A decision by one Province regarding the matter cannot be cited as ground for discrimination if another Province does not take the same decision. To hold otherwise would be an intrusion into the provincial economy of the Provinces. Now that the subject of Zakat and Ushr is within the domain of the Provinces, it is up to each Provincial Government to decide the terms and conditions of the petitioner's services".
16. For the reasons recorded above, these appeals are allowed and the judgments dated 07.02.2013, 20.06.2019, 19.09.2019, 30.10.2019, 24.10.2019 and 21.11.2019 of the Peshawar High Court are accordingly set aside.
17. Above are the reasons of our short order dated 15.07.2020. For ease of reference, the short order is reproduced below:
"We have heard the learned counsel for the parties so also
the respondents who have appeared in person. We are informed by Court Associate that all respondents are served. The respondents who have not appeared are proceeded ex-parte. For reasons to be recorded, these appeals are allowed and the impugned judgments passed by the High Court are set aside."
(Y.A.) Appeal allowed
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