JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT.

W.P.No.872/2017.
M. Umair Ashiq etc. Vs. Higher Education Commission etc.

Dates of hearing 03.04.2019, 16.04.2019, 17.04.2019,

18.04.2019, 22.04.2019 and 23.04.2019
Petitioners by M/s Ch. Ghulam Sarwar Nihung,
Muhammad Saad Khan and Sultan
Mehmood, Advocates.
Respondents No.1 by M/s Sajid Ijaz Hotiana and Tanzil ur
Rehman, Advocates.
Respondents No.2, 3, M/s Shan Gull and Asjad Saeed, Additional
4 & 8 by Advocates General Punjab.
Respondents No. 5 to Mr. Saad Rasul, Advocate.
7 & 9 by

MUHAMMAD AMEER BHATTI, 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
(PIMSAT), 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 suggested 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
Writ Petition No.872/2017. 2

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
supportive in structuring students’ careers accrued 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.
Writ Petition No.872/2017. 3

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 education 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
Commission 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:- CATEGORIZATION OF PRIVATE SECTOR
UNIVERSITIES/DECREE AWARDING
INSTITUTIONS IN RELATION TO
MEETING CRITERIA REQUIREMENTS.

Dear Sir,
It is to inform you that Higher Education
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
Writ Petition No.872/2017. 4

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?
Writ Petition No.872/2017. 5

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 PIMSAT 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
impediment 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
Writ Petition No.872/2017. 6

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
Writ Petition No.872/2017. 7

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 account
of inaction of the authority/Commission/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
 Writ Petition No.872/2017. 8

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
PIMSAT, Karachi and outside 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.

(MUHAMMAD AMEER BHATTI)

JUDGE.

Announced in open Court on 03.07.2019.

Approved for reporting.

JUDGE.
Gull/Nadeem*