Session No. 4/1/2011
Appeal No. 189 of 2010 - Civil Cassation

1.     Grievance is - a wrong or hardship suffered which forms legitimate grounds of complaint by the concerned person - who shall have the right to redress the grievance in accordance with the Grievance Law, namely, referring the grievance to the departmental authority itself prior to having recourse to appeal, since the department is the litigant and must give rights to those who are eligible to them without sustaining the hardship of the judiciary and its procedures, provided that the authority for the withdrawal or cancellation of the decision shall remain with the departmental authority after having been pronounced and the grievance shall be lodged prior to instituting an action for cancellation of the departmental decision if it becomes impossible for the departmental authority to reconsider its decision due to exhausting the jurisdiction to issue it and for the lack of the presidential authority that possesses the power of review over the source of the decision. The channels for lodging a grievance shall then be closed.

2.     The decisions of the Equivalences Committee in regard to the equalization of the certificates for the First-Class University Degree shall not oppose the withdrawal and cancellation of the matter that forms the basis of the grievance to the Committee. The same shall also apply to the decisions thereof by refusing equalization of such certificates for the First-Class University Degree but such shall not waive the right of the concerned persons to have recourse directly to the judiciary, in view of the fact that proceeding through the grievance channels is permissible unless required by law prior to instituting a case for cancellation of the administrative decision.
 
3.     The Committee's refusal to equalize the Respondent’s university qualification because he obtained it from an educational centre outside the university is a departmental decision under Law No. 7 of 2007 regarding the Administrative Disputes Settlement appealable on the plea of cancellation.
 
4.     One of the established constitutional principles is that equality in rights of citizens before the law shall not mean the categories thereof shall be treated despite of the dissimilarity between them in the legal statuses, in an equivalent legal treatment and that the equality necessitated by the Principle of the Opportunity Equivalence is not an arithmetic one, since the Legislator, in fulfillment of, the public good prerequisites and with the discretionary power conferred upon him possesses the placement of objective conditions of which legal statuses shall be specified, in which the individuals shall become equal before the law, in such a manner that, if such conditions are met in a group of individuals, the employment of the equality between them shall be required for the similitude of the conditions and legal statuses thereof. If the equalizing reference between them is elapsed, as the conditions are met in some of them without others, those who met such conditions, with the exclusion of others, shall enjoy the rights given by the constitution to them. The Legislator specification of such objective conditions required by the public good to enjoy the rights, shall not breach the condition of the fulfillment of the generality and abstraction in the rule of law in view of the fact that, such conditions shall apply to all, on one hand and on the other hand, the equality norm, in violation of, the former concept, shall not be taken as a way to oppose the provisions of law and the violation thereof.
 
5.     Provision of – deficiency in reasoning – invalidity – requirement of the appealed judgment therein to meet the objective conditions for the equalization of the Certificates in the First-Class University Degree, as the balancing between the subjects and the plans thereof and the courses and examination systems, without bringing up the balancing between the two certificates, in terms of, meeting the objective conditions required to be met by the Certificates Equivalence Committee, the similitude thereof in both of them, the matter that shall be faulted by rescinding deficiency and shall require the cassation thereof for this reason.
 
Such being the case, and that the appealed judgment met the availability of the objective conditions to the equalization of the Certificates in the First-Class University Degree, which he provided with the reasons thereof, being as the balancing between the subjects and the plans thereof and the courses and examination systems and he proceeded to say that the Certificates Equivalence Committee issued the decision thereof No. 1440 on 10/07/2001, with equalizing the Bachelor Certificate attained by …….. from the Faculty of Law" in Al Neelain University in Sudan, in a manner that, its power to equalize the Certificates as to all the students who attain them from the very same university, diminishes and he eventually comes to the requirement of equalization of the Bachelor Certificate in the Faculty of Sharia and Law issued to the Respondent from South Nile Valley University on 05/11/2006 in the First-Class University Degree, without bringing up the balancing between the two certificates, in terms of, meeting the objective conditions required to be met by the Certificates Equivalence Committee, the similitude thereof in both of them, the matter that shall be faulted by rescinding deficiency and shall require the cassation thereof for this reason, without the need for looking into the remaining reasons of appealing.  

The Facts

On 01/08/2010 the Appellant filed a challenge for cassation against the Court of the Administrative Appeal Ruling No. 4/2009 issued on 08/06/2010. On the same day the Respondent lodged an explaining pleading and on 08/08/2010 the two Respondents declared in the Challenge List, and on 11/08/2010 the Respondent lodged a statement of defense in which he requested the refusal of the challenge. In the session of 07/12/2010 the challenge was presented to the Court in the deliberation room which decided that it is worthy of a hearing session scheduled for 21/12/2010.

The Court of Cassation

Having perused the documents and heard the report read by the presiding Judge at the hearing, and after hearing the arguments and having satisfied the procedural formalities of the appeal the facts may be summarized as follows:
 
The Respondent filed Case No. 13/2008 before the Administrative Circuit Court of First Instance for cancellation of the decision issued by the Certificates Equivalence Committee on 21/01/2008 in which it refused to equalize the Respondent’s Bachelor Certificate of Sharia and Law that he had obtained from the South Nile Valley University on 05/11/2006. The Respondent stated that he had affiliated to the Faculty of Sharia and Law at the South Nile Valley University in Sudan through………, which is a Limited Liability Company licensed to practice its activity. After obtaining his degree he applied through his work with the Legislation Council to the Certificates Equivalence Committee for equalization of his Certificate, but on 21/01/2008 he was advised by the Committee that such equalization of his Certificate was impossible because his study and examinations had taken place in an educational centre located outside the University campus. The court dismissed the case on 25/12/2008 and the Respondent filed an appeal No. 4/2009. The Appeal Court on 8/6/2010 upheld the appealed judgment against equalization of the Certificate and refused other requests. The Appellant filed an Appeal by Cassation and a hearing session was scheduled.
 
The Appeal was based on three reasons. The first and the second consist of several aspects and the Appellant challenged two parts of the first aspect of the first reason, arguing that the Appealed Judgment erroneously applied the law when it accepted his case by incorrectly computing the legal date for instituting the case for cancellation of the administrative decision. Such date should have been computed from the transaction rebuttal date and not from the end of the one-month period for the administrative body’s issuance of the decision thereof in the equalization application. as to have the challenge cancellation case been instituted after the deadline, other than, having been not acceptable for non-entrance into the grievance path from the appealed decision, prior to instituting the challenge cancellation case, the matter that rendered such appealed Judgment defective and necessitates the cassation thereof.
 
And whereas this challenge is implausible, due to the fact that the legal period prescribed in Article 9 of the Certificates Equivalence Committee for the Committee’s issuance of the decision thereof in respect of the Certificates Equalization is one month commencing from the application submission date, and if it is established in the documents that the Respondent applied on 12/12/2007 to the Certificates Equivalence Committee through his work body for equalization of his Bachelor Certificate obtained from the South Nile Valley University in Sudan, then the Committee must issue a decision on the application "either negatively or positively" within a period not later than 11/01/2008, which corresponds to the date from which the calculation of the sixty-day period provided for in Article 6 of Law No. 7 of 2007 commences regarding the Administrative Disputes Settlement appealable on the plea of cancellation. And if it is established that the Appellant’s case for the cancellation of the administrative decision was instituted on 14/02/2008, it would be instituted on the date and if the challenged judgment was obliged with such consideration, it would be an obligation of a sound law. What had been raised by the Appellant, in his capacity, shall not change the reason of challenge, from obligation to enter into the grievance path prior to instituting the challenge cancellation case, due to the fact that recourse to the judiciary is optional and shall not prevent the Appellant from having recourse to the Guardians, with the grievance, considering that a grievance is a wrong or hardship suffered which forms legitimate grounds of complaint by the concerned person, who shall have the right to redress the grievance in accordance with the Grievance Law, namely, referring the grievance to the departmental authority itself prior to having recourse to appeal, since the department is the litigant and must give rights to those who are eligible to them without sustaining the hardship of the judiciary and its procedures, provided that the authority for the withdrawal or cancellation of the decision shall remain with the departmental authority after having been pronounced and the grievance shall be lodged prior to instituting an action for cancellation of the departmental decision if it becomes impossible for the departmental authority to reconsider its decision due to exhausting the jurisdiction to issue it.
 
As such, as the resolutions of the Certificate Equalization Committee on first-class university degrees shall be endorsed by the undersecretary in the implementation of item 1 of the section entitled “Endorsement of Committee Resolutions”. Furthermore, as the resolutions of such committee may be changed, in the implementation of item 4 of the section entitled “General Resolutions of the Regulations of the Committee”, therefore the resolutions thereof with regard to equalization of first-class university degrees may not be an exception to this practice. Therefore, grievance against such resolutions before the committee is permissible. The same shall apply, on first instance, to the resolutions of the committee with regard to rejection of such certificates for first-class university degrees. However, this shall not remove the right of concerned parties to resort directly to justice, considering that resorting to justice is option unless obligated by the law before filing the claim for cancellation of the administrative resolution. Where the regulations of the equalization committee do not provide for obligatory grievance procedures before filing a claim for cancellation of the administrative resolution, then the claim of the respondent for cancellation of the contested resolution, if directly filed before resorting to grievance, shall be deemed as based on proper law.
 
Whereas the Appellant further contested, in the second aspect of the first reason, that the ruling is a violation misapplication of the law. The Appellant states that the Certificate Equalization Committee has not issued any resolution on the application submitted by the Respondent for equalization of his certificate. It merely, upon considering that such application does not meet the necessary conditions, rejected the transaction without any resolution, a matter which leads to the non-existence of the administrative resolution. If the contested ruling accepts the claim and cancellation of the contested resolution, it would be disgraced and therefore in need of cassation.
 
However, this challenge is not correct since the administrative resolution is the formal expression of the competent entity, as required by the law, of its obligatory will based on public jurisdiction vested therein by the laws and regulations in order to produce a certain legal effect. Furthermore, it is established from the letter of the chairman of the Committee addressed to the head of the administrative and financial department of the Shoura council (work location of the Respondent) dated 21.8.2008; that the committee did not equalize the certificate of the Respondent due to the fact that his study took place in an educational centre outside the premises of the university. If the Committee’s regulations do not provide for a certain form for issuance of the resolutions thereof, what was issued by the Committee in the aforesaid letter is, therefore, a mere expression of the tendency of the competent entity, based on jurisdiction vested in it by the Committee’s regulations, to reject the application of the Respondent for equalization of his first-class university degree. Accordingly, what has been issued by the committee is an administrative resolution as intended by the legislator under Law No. 7 of 2007, namely, that the settlement of the administrative resolutions may be contested through a cancellation claim. In case the contested resolution is committed to this view, it will be in compliance with the proper law; and accordingly, the aforesaid challenge in this regard shall be baseless.
 
The Appellant further challenged the contested ruling as being deficient in its reasoning. He stated the contested ruling based its judgment on the equalization of the degree of the Respondent on a previous decision by the committee on the equalization of another certificate … due to similarity, although the latter obtained his degree from a university different from that of the respondent and in different circumstances, which therefore eliminated the similarity. In such case, the implementation of the rule of equality is not permissible, as it renders the ruling defective and therefore necessitates cassation thereof.
 
Whereas this challenge is proper, since it is an established constitutional principle that equality of rights of citizens before the law does not mean that variable categories of different legal positions shall be treated equally. The equality necessitated by the principle of equal opportunity is not an arithmetic equality. This is because the legislator, in the public interest and based on his discretionary powers, may establish objective conditions to determine the legal positions whereby individuals become equal before the law in such a way that once such conditions exist in a category of individuals, equality among them must be implemented due to similarity of circumstances and legal positions. However, if such conditions exist in some individuals but not in others, only those who meet such conditions shall avail the aforesaid constitutional rights. The determination by the legislator of such objective conditions in the public interest does not prejudice the conditions related to generality and deprivation in the legal rule. This is because such conditions address the whole, on one side, and on the other side, the equality rule in violation of the foregoing perception should not be taken as a tool for violating the provisions of the law.
 
As such, and since the contested ruling has necessitated the existence of the objective conditions for the certificate to be equalized to a first-class university degree, for which the Court stated the reasons, to wit: balancing between the designated subjects of study, plans, curricula and exam systems. It added that the Certificate Equalization Committee issued its resolution No. 1440 dated 10.7.2001 on the equalization of the bachelor degree obtained by ------------ from the college of law at Nilein university, Sudan. This diminishes its authority to equalize degrees for all students obtaining the same degree from the same university. The rule concluded to necessitate the equalization of the first-class bachelor degree in Sharia and law issued to the respondent from the university of Janoub Wadi Al-Neil university on 5.11.2006 without showing the balance between the two certificates, as far as the existence of the objective conditions are concerned, as required by the regulations, while the ruling stated its reasons of similarity in both. This renders the ruling deficient, which leads to invalidity. Therefore cassation is obligated regardless of the other causes of contestation.