TAYYABA Versus CONTROLLER OF EXAMINATIONS BOARD OF INTERMEDIATE AND SECONDARY EDUCATION HYDERABAD SIND

MUHAMMAD HALEEM, J.--- Since by and large the facts are common and the accusation being identical in the show-cause notice, this judgment will dispose of Petitions 763 and 772 of 1973. The petitioner in Petition No. 763/73 is Miss Tayyaba whose seat No. was 2481 while Aftab Ali is the petitioner in the other petition whose seat No. was 2441; the former is the 3tster of the latter. Malik Mukhtar Ali, who is their brother but not a party in these proceedings, was one of the invigilators at the Centre, where the Annual Examination for the High School Certificate, Parts I and II of the Board of Intermediate and Secondary Education, Hyderabad, was held in August 1972, in which the petitioners appeared for Part I Examination. It is the accusation that with his assistance the petitioners used unfair means as defined in the rules, in consequence of which their results were cancelled and they were debarred from appearing in the examination for one academic year 1971-72; and such punishment was notified vide Notification No. BISE/HSCE/SECRET-73 dated 28-6-1973, issued under the authority of Controller of Examinations. The petitioners have therefore impugned the legality of the decision; and later on in the amended petition the minutes of the Sub-Committee, which is the basis of this decision, is also challenged.

2. Both the petitioners appeared in the same subjects in the examina tion namely; Biology, Physics, Chemistry, Urdu, and English. Apparently, after the examination was over a show-cause notice dated 24-10-1972 was issued to Miss Tayyaba on the basis of written complaints received from Miss Sajida Pathan who was also a candidate for the same examination, her brother, Tufail Agha, and the Co-Superintendent, Qamruddin Bhugio, who was also examined in this Court at the behest of the respondents. The gravemen of the accusation was that with the assistance of her brother Malik Mukhtar Ali "she had managed to replace the answer books" written by a person other than herself; and that as such she had used unfair means at the examination, which charge she was called upon to meet before the Dis ciplinary Action Sub-Committee (hereinafter referred to as the committee) on 30th October 1972. She repudiated the accusation in her reply dated 26th October 1972 alleging inter alia, that this action was taken at the instance of Qamaruddin Bughio to whom she had protested for helping Miss Sajida 'Pathan to copy out-the answers. Later she appeared before the committee and was given dictation to ascertain as to whether the answer books were written in her own hand or by some one else and this was all according to her, that was done on that occasion. Thereafter, she was served with a copy of notification dated 19th February 1973 debarring her from appearing in the .examination for two years i.e. 1971-72 and 1972-73; her result having been withheld earlier. She challenged the legality of this decision by Petition No. 226 of 1973 which was compromised by the parties and stood disposed of by order dated 11th April 1973. The impugned notification was thus quashed leaving the respondents to hold further inquiry if they so wished. Consequently another show-cause notice was issued which was undated but stated to have been received by her in the first week of May 1973 which recited the accusation as under:-----

"You were a candidate for the Higher Secondary Certificate Part I Class XI Examination from the Government Girls College, Jacobabad and appeared at the said examination, commencing from the 19th August 1972 at Government College, Jacobabad Centre with Seat No. 2481. After the examination on 22-9-1972 this office received a complaint from Tufail Agha a brother of another candidate, Sajida Pathan Seat No. 2480 and on 22-10-1972 by herself who was also .appearing at the examination from the said centre and in the same block from where you were taking the examination, that you with the .help and connivance of your brother Malik Mukhtar, adopted illegal means by replacing your original answer books and substituting the smuggled answer books.

On this you were charge-sheeted vide this office Letter No. BISE/HSC/919, dated 24-10-1972 and you were directed to submit your explanation and were told that in case you wanted to be heard in person you could appear before the Disciplinary Action Sub-Committee on 30-10-1972. Your brother Malik Mukhtar Lecturer, Government College, Jacobabad was also required to appear before the committee. You appeared before the Disciplinary Action Sub-Committee on 30-10-1972 alongwith your brother Malik Mukhtar. During the course of enquiry you represented that the answer books were written not by any body else but in your own handwriting. You were then, informed of the amended charge-sheet to the extent that as admitted by you even if the answer books were in your hand writing, the illegal means and unfair means have yet taken place with the help and connivance of -your brother and the answer books have been replaced. You were ,required by the committee to State what you had to say, and were given full and fair opportunity to lead your defence. It was also noted that you and your brother were not able to give any satisfactory replies of the questions put by the Sub-Committee or the candidate Sajida Pathan. The members of the Sub-Committee gave you a fair chance to write a paragraph from the essay you wrote in your examination answer book you tried it and committed number of spelling and other mistakes in it whereas in your answer books there is not a single mistake of such words.

There is also evidence on record to establish that one of your brothers namely Aftab Ali Seat No. 2441 who also appeared at the said examination, from the same centre, whose answer books have also been allegedly substituted by adopting the similar means and methods as were adopted in your case. On comparing your answer books with the answer books of your brother, it has been observed that answers to the questions tally word by word, so much so that mistakes committed by one are same as of other. These seem to have been copied from the same prepared material outside the Examination Hall. This clearly indicates that the charges levied upon you by candidate Sajida Pathan that you got illegal help have weight.

The Disciplinary Action Sub-Committee while studying the case during enquiry and hearing all the concerned parties was of the opinion that you have got your answer books replaced with the help of your brother Mukhtar Malik and the Co-Superintendent Mr. Izharul Hassan, therefore the Committee unanimously resolved that you may be debarred for a period of two academic years. This decision was, notified under this office Letter No. RISE/HCS(SEC)-73/1085, dated 19-2-1973.

You filed a writ petition in the High Court of Sin& 8r Baluchistan at: Karachi, against the decision of this Board. The petition has since been disposed off by the High Court. According to the terms of the said order, the Board is free to hold fresh inquiry, giving you full opportunity to defend yourself.

You are accordingly given this fresh notice to show cause why on the basis of the facts and reports disciplinary action under the relevant; Rules Nos. 7(xiv), 7(xix) and 12 of the Board should not be taken against you for having adopted illegal means and methods during the examination with the help of your brother Malik Mukhtar, Lecturer,. Government College, Jacobabad in order to cheat at the examination by methods such as smuggling of answer books and or substituting the whole or part of the answer book etc. re-written in your own hand writing in order to get undue benefit at the examination:

The relevant rules on the subject are as under--

(6) If a candidate is found having in his possession or accessible to him, paper, books or notes which might possibly be of assistance to him, he shall be deemed to have used unfair means.

(7) Subject to the generality of the word as defined 'unfair means' shall also include the following namely:---

(xiv) making deliberats previous arrangements to cheat in the examina tion such as smuggling in or out a question paper or an answer book, impersonation or misconduct of a serious nature ;

(xix) substituting the whole or a part of an answer book or a continuation sheet by an answer book or a continuation sheet not duly issued to him for the examination.

(12) If a candidate is found guilty of using any other form of unfair means, not specifically mentioned in the rules he shall be awarded such penalty as the Competent Authority may determine, provided that the penalty so awarded will not exceed the maximum laid down in, these rules."

There was, however, a marked variation from the earlier accusation which in, substance was that she had replaced her answer books with those written by someone else. In her reply dated 12th May 1973 she again repudiated the charge stating Inter alia, that no enquiry worth the name was held in the earlier proceedings; and that if there was any evidence against her then she should be supplied with the statements so that she could cross-examine the persons who had given such statements. Alongwith the reply she also enclosed the privately recorded statements of Miss Parveen Akhtar, lady invigilator, the Superintendent of the Centre and the factotum, Mohammad Ghufran Pathan. The first respondent however did not supply her the statements but in the letter dated 4th January 1973 directed her to appear before the Committee on 14th June 1973. Again she repeated her request and asked for particulars on which the accusation rested stating at the same time that if this was not done she would be prejudiced fn her defence. At the same time she gave out the names of the above persons whose statements, she had sent earlier and that of her brother for being called before the Committee for being examined. In spite of her requests the copies of the statements were not made available; nonetheless she appeared before the Committee on 14th June 1973 and was put the same question as to whether she had replaced her answer books to which she replied in the negative. Even at that stage it is her complaint that she was nether given the state ments nor confronted with any evidence and allowed to go and was again asked to appear on 18th June 1973 so as to cross-examine those persons whom she' had named earlier. Miss Tayyaba appeared before the Committee on 8th, June 1973 and cross-examined Izharul Hassan, Miss Parveen Akhtar and the factotum as is apparent from the statements of these persons which were filed alongwith the copy of the minutes of the meeting dated 8th June 1973, but again it is disputed as to whether they were recorded in full. Her grievance, however, remains that the Committee failed to disclose as to how she was able to replace the answer books with the help of her brother Malik Mukhtar Ali in the context of the statements of lady invigilator, Superintendent and the factotum who have not attributed any malpractice to her. She has also made a grievance of the fact that the reports on which action was taken were withheld from her and that the persons whom she had called to, cross-examine were examined by the Committee in her absence and those statements were also not given to her about which she had protested to the Chairman of the Committee in writing the same day. In conclusion she has challenged the minutes on the footing that in the absence of any evidence to show substitution the action of the Committee was arbitrary and capricious and violated the principle of natural justice. It will be worthwhile here to reproduce the relevant minute which led to the imposing of punishment on', the petitioner.

2. 2481 Miss Tayyaba daughter of Imamuddin Malik.

"The case had been retried and a fresh inquiry held and the candidate was charge-sheeted. The candidate Miss Tayyaba was afforded full opportunity to defend herself. She represented her case and explained her side. She also examined her witnesses and filed a written statement. Her explanation was not found satisfactory. She was also given an opportunity to reproduce any answer or part of it, which she claimed to have crammed but she failed to do so. It was decided that she is guilty and her Annual Examination 1972 be cancelled and she be debarred for a period of one academic year i.e. 1971-72. She may be allowed to appear in all the ten papers of Class XI and XII at the Higher Secondary Certificate, Parts I and II, Annual Examination, 1973."

3. As for Aftab Ali, his result was declared but he was also served with a show-cause notice dated 3rd April 1973 during the pendency of Petition ;No. 226 of 1973, which gives out the accusation as under:---

"While scrutinizing the answer books in has been observed that at the High Secondary Certificate Part I Annual Examination 1972, your answers to the question in Physics-I, Chemistry-I and Biology-I are tallying word by word with the answers to the question of the candi date having Seat No. 2481 so much so that mistakes committed by you are the same as of others. It is also reported that you succeeded in re-writing and re-placing your answer book with the help of your brother and Mr. Izharul Hassan Co-Superintendent who was lodged at your residence during Examination. Thus you are charged with the offence of using unfair means at the Examination."

He had also repudiated the allegations in his reply dated 7th April 1973 and asked for the statements of those persons on which the accusation rested but was not supplied with those statements. He has also imputed male fides as a reason for taking delayed action against him namely, that the Committee was prompted to do so because his sister had filed a petition to impugn her punishment which was pending in this Court. The first respondent, however, stating in his letter dated 5th May 1973 that he had already been informed of the charges yet refrained from giving him copies of the statements and in particular directed him to appear before the Committee on 16th May 1973. Aftab Ali again repeated his request for the statements and also asked for better particulars of those portions of his answers which were found to be similar with those of his sister. He again levelled malice against the Chairman, the first respondent and Qamruddin Bhugio. Further he gave out his case as under:---

"As far as I know that except one or two questions all other questions have been answered separately and similarity of the answers of both of us, is very natural as we both had studied together throughout and from the same prepared notes by us, which are sometimes crammed by us even."

The first respondent again did not accede to his request and directed him to give nut the names of those whom he wanted to examine before the Committee on 4th January 1973 vide letter dated 4th January 1973. He again repeated his request saying that he was not aware as to how he was able to replace the answer books as no particulars were given and, therefore, it was his right to be supplied with the copies of the statements on which the accusation rested. He also desired to cross-examine Izharul Hassan, the factotum and his brother Malik Mukhtar Ali. Finally, he appeared before the Committee on 14th January 1973 and was again asked to appear on 18th January 1973 for .cross-examining those witnesses whose names he had given earlier. In his .case, the minute recorded is as under:-----

"(1) 2441 Mr. Aftab Ali son of Imamuddin Malik. The candidate appeared before the Sub-Committee and was heard in person. He filed his written statement. He was also given full opportunity to defend himself and cross-examine the witnesses. He was found guilty. It was decided by the Committee that his result of Annual Examination, 1972, may be cancelled and be debarred for a period of one academic year i.e.. 1971-72 and he may be allowed to appear in all the ten papers of Class XI and XII at the Higher Secondary Certificate Part I and 11 Annual Examination, 1973."

His grievance is substantially the same as that of his sister.

4. In both the petitions the defence is common that the petitioners were given full opportunity to present their case and lead evidence, that there was evidence to sustain the accusation, that there was a strong similarity in the answer books of English, Physics, Chemistry and Biology, that the petitioners .did not give any satisfactory reply in regard to this allegation, that they had been shifting their case and trying to make unnecessary inquiry from persons who were least concerned with the user of unfair means, that the similarity in the answers led to the conclusion beyond doubt that both of them had re written the answers and managed to substitute them with the help of Malik Mukhtar and Superintendent Izharul Hassan, who was living at that time with Malik Mukhtar in the same house, that the witnesses cited by the ,petitioners were allowed to be cross-examined by them, that there was no necessity of examining the witnesses in the presence of the petitioners, or supplying them with their statements, and lastly denied the allegations of the petitioners. In support of their case, the respondents also filed photostats of the answers which bear similarity. While the case was being argued, the counsel for the petitioners moved for impleading the Sub-Committee and he was allowed to do so after hearing the other side. He filed the amended petition and impugned the minutes of the Sub-Committee. An additional .counter-affidavit was filed on behalf of the Sub-Committee. In this counter affidavit, the maintainability of the petition is disputed upon the ground that the petitioners bad not availed the alternate remedy by way of an appeal under the rules and, therefore, the petition was premature. It is further contended that the convenor was authorised to sign the decision on 18th June 1973 which was later, incorporated in the minutes of the Sub-Committee. As for not filing the appeal for want of a copy of the decision it is contended that since the decision was notified there was no necessity for supplying its .copy and, therefore, it is asserted that the appeal could have been filed within the time allowed, that is 30 days, and that in any case since the time runs from the date of knowledge, it could still be filed. It is denied that the rules are ultra vices or that the Sub-Committee was incompetent to decide the question; similarly, the rest of the allegations are also denied.

5. The examination concluded on 27th August 1972. Thereafter, as is manifest from the notings dated 2nd and 21st October 1972 in the depart mental file No. 1 concerning Miss Tayyaba, written complaints were received from Tufail Ahmad Pathan and her sister, Mst. Sajida Pathan having Seat No. 2480, that the answer books of Mst. Tayyaba were replaced by her brother, Malik Mukhtar Lecturer, in the Government College, Jacobabad. The first noting records that upon verification from the "Conduct Branch", it transpired that Malik Mukhtar neither acted as an invigilator nor a "Deputy Superintendent" and, therefore, "this portion of the complaint loss ground". However, it further records the fact that having regard to the handwriting and the language used in the answer books it is doubtful whether it was her effort, and it was suggested that Tufail Ahmad Pathan, Malik Mukhtar and Miss Tayyaba should be summoned to appear before the Sub-Committee. However, no concrete step was taken except the inspection of her answer books. in the second noting there is a further statement that "the answer books of the candidate have been checked and there seems no trace of replacement of inner covers". It was further recorded that if this complaint is taken to be true then it leads to the probability of a fact that all the five copies have been written by someone else and subsequently replaced by Malik Mukhtar with the connivance of some person on duty. Again, in the same noting the allegations of Miss Sajida Pathan are thus recorded:----

"She states that Miss Tayyaba has all along been a III Class student whereas herself is a student of 1st Class even in Matric. She quotes her Seat No. of S. S. C., Part II as 31140. She also complains against Mr. Malik Mukhtar that he managed to replace the answer books of her sister, Miss Tayyaba and therefore requests the comparison of handwriting."

An apprehension was also expressed in the noting on the basis of the above complaint that some mischief may have been played with her answer books by Malik Mukhtar by "either crossing her questions or detaching supplements from her answer books and that as a fact it was found that one supplement from her answer book of Chemistry, Paper I was missing". In the end it was pointed out that a thorough probe was required and, therefore, Tufail Ahmed Pathan, Malik Mukhtar, Miss Tayyaba and Miss Sajida Pathan should be summoned to appear before the Sub-Committee. This noting of the Superintendent H. S. C. (Secret) was approved by the Controller of Examina tions. While agreeing with this noting, the Chairman of the Board of Intermediate & Secondary Education, Hyderabad, further recorded that "the handwriting should be compared". It would also be relevant to mention at this stage that Qamruddin Bughio, who was a co-Superintendent at the Centre, also sent a letter dated 5th October 1972 alleging inter alia, that the Superinten dent bad connived at some irregularities which came to his notice afterwards, but on what date, he did not say so; that Malik Mukhtar was appointed as an Invigilator knowing fully well that his sister and brother were appearing in the examination at the same Centre; that to save himself from any legal action the Superintendent kept him on the "relieving side" so as to enable Malik Mukbtar to move freely with a view to help his brother and sister without being detected; that the Superintendent appointed Mr. Jamal as an Invigilator, who was not a teacher, apparently as be happened to be his friend; that the Superintendent failed to co-operate with him in maintaining discipline at the Centre. In the end, he complained against the non-prepara tion of his fee bill. While at page 279 of File No. 1 the receipt of Mr. Qamruddin Bughio's letter is apparent, in consequence of which an explanation was called from the Superintendent, yet in the noting dated 21st October 1967 there is no mention of it. 1n the circumstances, in spite of its non-mention it is not possible to conclude that the Sub-Committee would not have taken notice of the allegations in paras. 2 and 3 of his letter. There fore, the word `reported' in the first show-cause notice dated 24th October 1972 would embrace his complaint as well. Since the earlier petition impugning the punishment was not decided on merits but disposed of by a consent order giving the option to the first two respondents to hold a fresh inquiry after serving a fresh charge-sheet they proceeded to hold an inquiry.

6. However, upon the same material in the second show-cause notice Miss Tayyaba was accused of having adopted unfair means within the meaning: of rules 7fxiv) and (xix) and 12 of the Rules of the Board of Intermediate & Secondary Education, Hyderabad, hereinafter referred to as the Rules, in that, that with the help of her brother, Malik Mukhtar, she had replaced her answer books by either smuggling or substituting the whole or part of the answer books which were re-written in her handwriting. What is of signifi cance is that it was for the first time stated in the second show-cause notice that her brother had appeared in the same examination from the same Centre, though this fact was already known, whose answer books were also substituted in the same fashion and that on a comparison the answers to the questions tallied word by word including the mistakes in them, which showed that they were copied out from the same material outside the examination hall. Referring now to the accusation against Aftab Ali, her brother, it was given out that his answers to the questions in Physics Paper 1, Chemistry Paper I and Biology Paper I tallied word by word with the answers to the questions given by Miss Tayyaba and that this amounted to having used unfair means, namely of re-writing and replacing his answer books with the help of his brother, Malik Mukhtar and the Superintendent Izharul Hassan who lived at that time with him; therefore, while against Miss Tayyaba the allegation was that the answers to the questions in all the papers tallied with that of her brother, the allegation against Aftab Ali was confined only to answers to the question in three papers.

7. At the outset Miss Tayyaba alleged mala fides against Qamaruddin Bughio and so also against Miss Sajida Pathan and her brother, Tufail Ahmed Pathan. In para. 5 of the petition, she has given out the reason, namely that it was Bughio who was helping Miss Sajida Pathan to copy out the answers and upon her protest Bughio was annoyed with her. There is also a reference to a quarrel between Miss Sajida Pathan and Miss Tayyaba in the statement of the lady invigilator, Parveen Akhtar, as a result of which Miss Tayyaba cried and there was, therefore, a commotion upon which the Deputy Superintendent and one other person, namely her brother Malik Mukbtar, were called to pacify her. Since there was an allegation of mala fides, the learned counsel for the respondent examined Qamruddin Bughio in this Court to clear his position. He stated before us that Miss Tayyaba and her brother Aftab Ali, were in different rooms at the same Centre. There was a lady invigilator in the room in which Miss Tayyaba was given a seat. Malik Mukhtar was, however, on the relieving side that is, be was available for taking over as invigilator whenever necessary, and for doing any other odd job. He also stated that Malik Mukhtar informed him one day that one girl Sajida Pathan was copying her answers and that he went to her and told her not to copy and also informed the Superintendent, Izharul Hasan. He candidly pointed out that his complaint was not against Miss Tayyaba but against the Superintendent for conniving at the irregularities committed during the examination.

8. In cross-examination Mr. Khalid Ishaq, the learned counsel for the petitioner, failed to extract any material from which it could be inferred that he had any malice either against Miss Tayyaba or her brother. He disclosed that he did not even know Miss Sajida Pathan before the aforestated incident and that he had not met her after the examination was over. He had also met his brother once when he had come and complained to him against his warning her not to copy and that was in the afternoon of the day, on which he had warned her. He also disclosed want of knowledge about any com plaint having been made by Miss Sajida Pathan against Miss Tayyaba. In spite of his admission that he was called from Karachi and questioned by the Sub-Committee he could not say whether his statement was recorded. It is, therefore, not known as to what Qamruddin Bughlo had stated then. It is also of relevance to mention that knowing as he did about the irregularities, he delayed sending the letter till 5th October 1972, which he has explained on the footing that he had his own examination in which he had to appear and as also the vacation had intervened. He gave out further that the nationali sation of colleges had kept him busy. On being asked by us as to whether it was not his duty to report the irregularities immediately, he replied that he "did not want to destroy the atmosphere of peace in the examination centre" and that he had informed Izharul Hasan about them who had replied that there was nothing wrong. While deposing in this Court he gave out that his suspicion was aroused because he learnt from the "town people" and "the students" that Malik Mukhtar was an invigilator at the same Centre where his brother and sister were appearing in Part I Examination. He also filed his declaration, Exh A, to the effect that his close relatives were not appearing in the examination, of which he was to do the invigilation work. On the face of it such a declaration is meant for relatives who were to appear in Part 11 Examination and not Part 1. Obviously this bad no reference to the examination, in which his brother and sister were appearing. Assuming that he was motivated with the sense of duty to report but then that fact came to his knowledge while the examination was going on, which should have prompted him to report then instead of waiting for more than a month. The delay, therefore, is inexplicable for the reasons given by him. On the other hand, he candidly stated that his object in sending that communication was to show the connivance of Izharul Hasan in the commission of irregulari ties, and it is a matter of record that action was taken against both Malik Mukhtar and Izharul Hasan, which is however not the subject-matter of these petitions. Qamruddin Bughio did not give particulars of those irregularities which could give an insight about Miss Tayyaba using unfair means. Nonetheless, the communication was received by one of the respon dents at a time when action was being contemplated against Miss Tayyaba. It is therefore, not possible to accept that the disclosure of irregularities would not have weighed with the respondents but by itself that communication does not establish mala fides against Miss Tayyaba.

9. Again, from his evidence it is apparent that Miss Sajida Pathan indulged in using unfair means. That she and Miss Tayyaba quarrelled is also apparent from the cross-examination of Perween Akhtar, and that upon her application and that of her brother, the proceedings against Miss Tayyaba and her brother commenced. Again, it transpires from the counter affidavit filed on behalf of the respondents that the attention of the first respondent was drawn by letter dated 2nd September 1972 signed by students, namely Rehana Shaikh, Sajida Pathan, Noushaba Sarki, Sahibjan Syed, Zulekha Ansari and Rukhsana Parween, but there is no reference of it in the two notings though it was received earlier, in which it was jointly requested that Malik Mukhtar should not he appointed as an invigilator for the practical examination as it was apprehended that he would help his brother and sister. This apprehension was expressed because they felt that in theory papers he had extended facility to them for copying out the answers. The noting on this application shows that an inquiry was made from the Superintendent and on the receipt of his reply the application was consigned to record on 29th September 1972. It must be for this reason that this complaint does not find place in either of the two charge-sheets. It is also clear that the respondents did not regard it as worthwhile to initiate action on that complaint in spite of their attention having been drawn to the allegation against Miss Tayyaba and her brother. The fact, however, stands out that Miss Sajida Pathan was one of the signatories to the complaint and no action having been taken on it she again chose to complain against Miss Tayyaba which is the subject matter of the notings, upon which action was taken. Further the learned counsel for the respondents was unable to point out from the departmental files any other source of information in regard to the employment of unfair means by either Miss Tayyaba or her brother. While on the one hand, upon the report of Malik Mukhtar about Sajida Pathan copying her answers, nothing was done against her beyond administering a warning, yet action was taken against Miss Tayyaba and her brother on the complaint of Miss Sajida Pathan and her brother. It cannot, therefore, be denied that there was some element of animosity between the two. Again, it is recorded, in the second show-cause notice, which was served on Miss Tayyaba, that the allegations in the complaint of Miss Sajid Pathan were weighty and that upon its basis a conclusion was reached therein by the Sub-Committee that she had managed to get her answer books replaced with the help of her brother, with the only departure that in the earlier show-cause notice Miss Tayyaba was accused of replacing her answer books written by a person other than herself while in the second show-cause notice the accusation is that she had got her answer books replaced by those written by herself. Apparently, this must be due to the fact that her hand writing must have been verified at the first inquiry and, therefore, the replacement of the answer books written by someone else was altered. In spite of this firm stand in the show cause notice Siraj Ahmad has, in ground (J) of his counter affidavit, denied that action was taken against her on the report of Miss Sajida Pathan, which is not a correct statement of fact. As for denying in para. (7) of the counter-affidavit that no action was taken either on the report of Qamaruddin Bughio it is not possible to accept the denial in view of what I have observed earlier, and so also that the complaint of Tufail would not have weighed with the respondents.

10. Again, in the second show-cause notice it is recorded that Miss Tayyaba was informed of the amended charge-sheet namely, that in spite of the fact that the answer books were written in her handwriting yet the answer books were substituted with the help of her brother at the hearing during the first inquiry but the counsel for the respondents was unable to show from the departmental files as to what transpired at the hearing before the Sub-Committee when she was called to answer the allegations. One would expect that the minutes would have been recorded but nothing of the kind was done. In the circumstances it is doubtful whether she had notice of the accusation at the time. In the background as aforestated, Miss Sajida Pathan was not examined in her presence, nor was her statement supplied to her which, in my opinion, was necessary if her. allegations were weighty and pointed to the employment of unfair means. More so, when she had alleged mala fides against her. There is also material on record to sustain that Miss Tayyaba had asked for the copy of her statement which was not supplied and this fact can hardly be controverted. In the circumstances, I see no justification why she should not have been made available for cross-examination or that her statement, if recorded earlier, should have been withheld. In reply it is pleaded in para 21 of the counter-affidavit that the Sub-Committee is not bound to examine other examinees in the presence of Miss Tayyaba and that the Sub-Committee can obtain information in any way provided it gives fair opportunity to the person sought to be affected which has been given. Another stand taken is that Miss Tayyaba has been "shifting" her case and trying to elicit unnecessary information from persons who were least concerned with the employment of unfair means. The names of those persons are not stated and if this reference is to Miss Sajida Pathan, Tufail, Qamaruddin Bhugio or those responsible for looking after the invigilation work then I fail to see how those persons are not concerned with the employment of unfair means in the context of the accusation that the answer books were either smuggled or substituted after being re-written in her own handwriting and why at all in that event their statements should be withheld. While examining the departmental files we saw the written opinions of Abdul Hafeez Soomro, Mumtaz Ali Memon, G. M. Bbatti and Alamchand Chandani having ,bearing on the similarity of answers but the names of these persons do not transpire in the counter affidavit of the respondents. The probability nonetheless remains in regard to the undated opinions of the first three persons that they might have been considered while forming an opinion on the subject. In that event Miss Tayyaba was entitled to have notice of the opinions and to cross-examine the persons, which was not done. This is not all. The statement of Qamruddin Bughio was not recorded at all by the Sub-Committee. Neither he nor others responsible for invigilation at the centre, namely Izharul Hasan, Parween Akhtar and the factotum were examined in her presence nor the recorded statements of such of them were .made available to her, in spite of the fact that in ground H of the counter affidavit it is pleaded that the lady invigilator after examining the answer books of Miss Tayyaba and her brother of Chemistry Paper was of the opinion that the answer books were similar. Miss Tayyaba was not confronted with this statement and, therefore, she could not have had any opportunity to meet it at the inquiry. They were the persons who could .state whether Miss Tayyaba had employed unfair means and in this context their statements, if recorded by the Sub-Committee, should have been supplied to Miss Tayyaba before they were cross-examined. I may also point out that while replying to the first charge-sheet she had sent their privately recorded statements to the Sub-Committee in which all of them had unanimously stated that no unfair means was employed. They were only allowed to be cross-examined and as to whether their statements were gully recorded is again disputed which it is not possible to resolve at this stage. In the circumstances I do not see how prejudice can be excluded and whether it could be described as fair opportunity at all, particularly when the first two respondents had agreed to give her such facility vide consent order dated 11th April 1973 in Writ Petition No. 226/73. The stand, therefore of Miss Tayyaba that there was violation of the principle of natural justice can hardly be denied.

11. It is the case of Miss Tayyaba that there was no evidence of substitution of answer books. While denying this allegation, Siraj Ahmad stated in the counter-affidavit that it was not impossible to substitute the answer books with the help of her brother, the Superintendent and the invigilator. In the absence of proof, such a plea cannot rate higher than suspicion. I may recall here that Qamaruddin Bughio while being examined in this Court stated that one day when he returned to invigilate for the second shift he was informed at 3 p.m. by the factotum that the forwarding letter, which was required to be sent alongwith the answer books was not signed either by him or by Izharul Hasan whereupon he telephoned to the station master, to ascertain whether "the bundle of answer books had reached him "but he informed him that the bundle had not reached -till then. The bundle was taken by the peon to the railway station and on his return he was questioned by him, upon which he gave the explanation that he had delivered the answer books as usual and then gone home. He, therefore, telephoned the station master who told him that he had just received the bundle. However, his suspicion was aroused because of the delay of 2 to 3 hours, and what is sought to be made out is that during this interval of time there was a possibility of the answer books being replaced, but what surprises me most is that in spite of the suspicion that was aroused nothing further was done by him. If this was the suspicion according to him, then he should have reported the matter to the higher authority which, in that even, could have held an inquiry to ascertain the reason for the delay and the person responsible for it, but he did not do so. Again, he did not refer to it in his communication. It is also not possible to say whether he would have mentioned about it to the Sub -Committee as his statement was not recorded at all. 1t should not be lost sight of that being the co-superintendent it was his duty to collect the answer books, check them and to parcel them in a cloth bag with the help of a peon and to see that the bundle was despatched though it was the factotum who looked after the despatch of the parcel. It was, therefore a grave responsibility and I fail Vo see how he took no action when his suspicion was accused. The allegation, therefore, is neither here nor there and at any rate it cannot be regarded as one conceivably in the mind of the respondents while repudiating the case of Miss Tayyaba.

12. Again, in the counter affidavit of Siraj Ahmad it is given out that Izharul Ha-an was friendly with Malik Mukhtar and that during the time he was doing invigilation work Izharul Hasan stayed with him in his house, and in that connection he has given out that Izharul Hasan bad sent a letter giving out the address of Malik Mukhtar and, therefore, it was not difficult for him to arrange for the substitution of the answer books. This allegation is not substantiated and is denied. Again Qamaruddin Bhugio, who could have known about it, has merely stated that they lived in the same street which does not establish that they lived in the same house. Again, friendship is neither here nor there to establish the connivance of Izharul Hasan in the employment of unfair means.

13. Adverting now to the case of Aftab Ahmad, it is apparent that at a time when the first show-cause notice was served on Miss Tayyaba, all that she was accused of, was that she had managed to substitute her answer books with those written by someone else. It was not the case that all her answers tallied with those of her brother. It was after the decision of the earlier petition that in the second show-cause notice served on Miss Tayyaba that this allegation was made for the first time, in spite of the fact that Tufail Ahmad Pathan and his sister, Sajida Pathan had alleged that he had also employed unfair means at the examination. It is conceded in para. 9 of the counter affidavit that at the time of holding the second inquiry in the case of Miss Tayyaba, it was observed that the answer books of Physics, Chemistry, Biology, Urdu and English tallied with his answer books and, therefore, the show-cause notice was issued to him. Why a comparison was not done earlier, could only be explained on the basis that the allegation was that Miss Tayyaba had managed to replace her answer books and not that she and her brother had copied the answers from the same material and managed to substitute or smuggle their answer books. Nonetheless, there must have been some basis for doing so, which has not been disclosed. It cannot, therefore, be ruled out that it might be the suspicion emanating from the complaint of Miss Sajida Pathan and her brother, and so also the communication sent by Qamaruddin Bhugio. While it is not possible to hold mala fides against the respondents. yet it was incumbent on them to make available the statements of these persons and so also of the peisons responsible for invigilation, namely Izharul Hasan, the factotum and Jamal Khan who was the invigilator, which was not done. They were also not examined in his presence. What could be the material benefit in cross-examining some of them if Aftab Ahmad had no notice of what they had stated earlier, hardly needs any emphasis. What is more that there is common accusation that his answers tallied word by word with those of Miss Tayyaba and that he had managed to substitute his answer books alter rewriting the answers. Moreover, his case stands on the same footing as that of. Miss Tayyaba. In the circumstances, he should have had also notice of the material used against her as that was germane to the issue. This was not brought to his knowledge. The respondents have taken tile same stand that it was not necessary far the Sub-Committee the examine those witnesses in his presence or to supply their statements, which is again fallacious. In the circumstances, it cannot be said that Aftab Ahmad had fair opportunity to defend himself as prejudice cannot be excluded.

14. Having held that there was violation of the principles of natural justice it is not possible to accept as is given out in the minutes that full opportunity was afforded to Miss Tayyaba and Aftab Ahmad to defend themselves. Again, in the absence of any complicity of Parween Akhtar and, Jamal Khan, there is no possible explanation as to how the substituted answer books bear the signatures of these two invigilators. The learned counsel for the respondents realising the gravity of the defect in the proceedings and the absence of proof conceded at Bar that at the time of the examination, no material was detected, from which they could be said to have copied the answers. He even went a step further and stated that there was no evidence before the Sub-Committee to hold user of unfair means except the similarity of answers which became obvious on comparison of the answer books. Examining this stand I find that while in the show cause notice served on Aftab Ahmad it was stated that the answers to questions to Physics Paper I, Chemistry Paper I and Biology Paper I tallied word by word with the answers o: his sister, yet in the counter-affidavit answers to questions in Urdu and English Papers were also added, which is beyond the accusation and to which exception was rightly taken. Another impression that the show-cause notice gives out is that all the answers in the above question papers tallied, which is not the case. As far Miss Tayyaba she was accused of having all the answers in all the subjects similar to those of her brother, which is again not correct. We were referred to the answer books. In Biology, Paper I (Zoology), Aftab Ahmad attempted questions 3, 4 and 6 while Miss Tayyaba answered questions 2, 3 and 7. Only the answer to question No. 3 was common. In Biology Paper II (Botany), Ahtab Ahmad attempted questions 2, 3 and 5 while Miss Tayyaba did questions, 1, 4 and 5, but there is no accusation of any similarity in the answer to the common question 5. In Physics Paper I, Aftab Ahmad answered questions 4, 5, 7, 8 and 9 while Miss Tayyaba attempted questions 3, 4, 5, 7 and 1 . In Chemistry Paper I, Aftab Ahmad answered questions 1 to 5 while Miss Tayyaba attempted questions 3, 5, 7, 8 and 11. In Urdu and English all questions were compulsory ; nonetheless, similarity was noticed only in questions 4, 6, 8(a) and 9 of the answer book in English and in the answer to question No. 8 in Urdu. The counsel for the parties took pains to show us both similarity and dissimilarity in the answers to the common questions relied on, but it is not necessary for the disposal of these petitions to bring them out in this judgment as that was a matter for the exclusive consideration of the Sub-Committee. Bath Miss Tayyaba and her brother Aftab Ahmad took the stand that they had crammed from the same material and, therefore, their answers were similar to the common questions. While on the other hand it is the case of the respondents that the answers were rewritten from the common material and that it was not impossible to substitute the answer books after re-writing them with the help of Malik Mukhtar and the Superintendent. This assumption ignores the impracticability of substitution, particularly when the invigilators-had not cooperated. At any rate, there is no evidence of it, nor that the parcels were tampered at any later stage. Another circumstance relied tin is that when they were called before the Sub-Committee they were given an opportunity to reproduce the answers, which they failed to do so. It is riot possible to accept that any candidate would be able to reproduce the answers in a moment's notice without being warned earlier, particularly in technical subjects, answers to which are precise and require refreshing. Such an attempt would not lead to the only inference that they were not proficient enough to give that quality of answers. It is also of common occurrence that students cram answers from text books and prepared notes, which they reproduce in exlenso. Again, if it was a matter of mere rewriting then they would have attempted the same questions, which they have not done. They have obtained high marks in Zoology, Botony, Physics and Chemistry, which speak of the quality of answers. No exception was taken by the examiners. I fail to see bow by a mere similarity, a conclusion can be reached that the answer books were substituted when otherwise it is possible to reproduce the crammed answers. Being conversant with at least three subjects, which I had offered myself till the graduation level, I can well imagine that students can reproduce answers in that fashion. Ordinarily, I would not have gone into this question, but since the punishment related on a there speculation that I have ventured to examine it and I may say so, that the similarity in the answers to the common questions does not lead to the only conclusion of substituting the answer books after rewriting them. As is apparent from the show-cause notice, the Sub-Committee examined the issue with the preconceived motion that unfair means was used and it was thereafter that the factual conclusion was reached, of which there is no evidence. troth the candidates have obtained high marks and as such they could not have been deprived of their valuable rights merely on suspicion, without there being any tangible evidence. Such is the view of their Lordships of the Supreme Court in Samar Pervaiz v. Board of Intermediate & Secondary Education (P L D 1971 S C 838), where there was no legal evidence to sustain the accusation, and it was held that such domestic forums while dealing with the valuable rights and privileges of an individual cannot snatch them away on conjectural grounds, even though such grounds may ostensibly appear to be very plausible but without any valid proof of their tangibility. In effect, if I may say so, it extended the principle of reasonable doubt to a case in which punishment was awarded, which the Sub-Committee failed to extend in the instant case. I am therefore, of the view that the conclusion is erroneous, which has resulted in the infliction of punishment when reasonable doubt could not have been excluded ; and in this view of the matter, the Sub- Committee cannot be said to have found the petitioners guilty (if using unfair means within the meaning of rule 6(xiv) and (xix) of the Rules which as they are worded, require proof to sustain such conclusion.

15. The last objection is in regard to the maintainability of the petitions. It was contended by the learned counsel for the respondents that rule 20 of the Rules gives a right to the petitioners to appeal to the Board against the decision of the Sub-Committee holding them guilty of using unfair means ; and not having availed that relief, which they can invoke even now, in spite of the time limit having expired which could have been extended, they should not be allowed to invoke the constitutional jurisdiction of this Court. It has been held by the highest judicial authority that this is not a rule of law barring jurisdiction but a, rule, by which the Court regulates its jurisdiction. It is, therefore, a rule not without exceptions and time and again it has been held that where an order is without jurisdiction or a functionary acts mala fide or in a perverse, unjust and oppressive manner or where the filing of an appeal is a futile exercise on the part of the individual that a petition can be entertained in spite of the alternate remedy being available. I am inclined to view in the background as aforestated that the finding of the appeals to the Board would be a futile exercise on the part of the petitioners and, therefore, this objection will not come in the way of the maintainability of the petitions. The objection has, therefore no substance.

16 In the result, for the foregoing reasons I hold that there is not only violation of the principle of natural justice but also teat the opinion of the Sub-Committee rests on suspicion without there being any legal proof. It is therefore, futile to leave the respondents to hold another inquiry as it would entail further hardship on the petitioners. I accordingly declare the punishment inflicted on the petitioners by the impugned notification and so also the minutes as without lawful authority and of no effect. While accepting the petitions I would leave the parties to bear their own costs.

DORAB PATEL, J.- I agree.

S. Q. Petitions accepted.