VICE-CHANCELLOR, UNIVERSITY OF AZAD JAMMU AND KASHMIR, MUZAFFARABAD Versus MUHAMMAD SHAHZAD KHALID

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑ This appeal, by way of leave to the Court, is directed against the judgment passed by the High Court on 20‑6‑2000, whereby accepting the writ petition filed by respondent herein it has directed the appellants herein to immediately declare the result of the respondent.

2. The necessary facts, giving rise to present appeal, are that respondent is a student of Ali Ahmad Shah University College of Engineering and Technology Mirpur. He appeared in the second professional Annual Examination of 1999 under Roll No.289 in the following papers

(i) T.D.M

(ii) A.C.Mechanic and

(iii) Electronic but his result was withheld on the stated ground that he used unfair means in the examination. The Disciplinary Committee issued show‑cause notice to respondent to appear before it if he desired to be heard in person. In response to the said show‑cause notice he appeared before the Committee and denied the charge of using unfair means in the examination, but he admitted that papers shown to him were of his own handwriting. The Disciplinary Committee during the enquiry found that the respondent and 38 other students were involved in the case of unfair means alongwith some officials of University. Their papers were cancelled and they were asked to reappear. First information report was also lodged: Appeal was filed by some of the students before the Vice‑Chancellor who formed the view that the Disciplinary Committee did not give adequate opportunity to students to show‑cause notice issued against them. He, therefore; set aside the order of which the penalty mentioned above was imposed and ordered de novo 'A proceedings by another Committee which was set up by him. The respondent filed a writ petition in the High Court challenging the proceedings initiated by the Disciplinary Committee and notice issued by it dated 23‑2‑2000 attached with the writ petition as Annexure " " and a direction was also sought that the appellants should declare the result of the respondent. In the written statement filed by appellants certain preliminary objections were raised. One of them was that the Disciplinary Committee which proceeded against the respondent vide the order of Chancellor, dated 31st March, 2000, has been set aside as such the writ petition had become infructuous. Similarly the U.M.C. Committee was constituted by Vice‑Chancellor to probe into the matter, it was also not impleaded as a party, and lastly that U.M.C. Committee was constituted by the Vice‑Chancellor who has also not been impleaded as a party in the writ petition. It was also averred in the written statement that the respondent, under the University Act, had a right of appeal before the Vice‑Chancellor and in fact he filed an appeal on whose appeal the previous proceedings of the Disciplinary Committee had been quashed and as such the writ petition had become infructuous. On the written statement filed by appellants the respondent filed the replication. The High Court accepted the writ petition filed by respondent herein vide its impugned order dated 20‑6‑2000, on the ground that the Vice‑Chancellor had no jurisdiction to constitute another Disciplinary Committee. Hence this appeal, with the leave of the Court by Vice‑Chancellor and 3 others.

3. In support of appeal it was vehemently contended by Sardar Muhammad Yasin Khan, the learned counsel for the appellants; that the High Court has clearly recorded its verdict in terms that the Vice‑Chancellor had no jurisdiction to constitute a new Disciplinary Committee as under the provisions of relevant law and rules he was not vested with any jurisdiction, C but the aforesaid finding was recorded without impleading the Vice Chancellor as respondent in the writ petition. The learned counsel also contended that the Vice‑Chancellor set aside the proceedings of previous Committee and provided opportunity of hearing to respondent and other students which was only way to ascertain the true facts but the High Court erred in exonerating the respondent. It was also contended by the learned counsel that if the order of Vice‑Chancellor was without jurisdiction the conviction recorded first by Disciplinary Committee stood revived. The learned counsel also contended that the Vice‑Chancellor who had ordered the fresh proceedings against respondent and other students,, his order was not challenged.

4. Controverting the arguments raised by the learned counsel for the appellants Sardar Muhammad Sayab Khalid, the learned counsel for respondent, contended that appeal filed by three appellants Professor Sarwar, Dr. Khawar and Naib Hussain Chaudhry was incompetent because the Disciplinary Committee consisted of four members; out of them only three persons filed appeal whereas Ansar Jameel, who was also a member of Disciplinary Committee and was impleaded as non‑applicant in the writ petition filed by respondent has not filed the appeal. The decision thus, taken by the whole of the Committee being indivisible Ansar Jameel was also a necessary party to be impleaded as appellant in the memo of appeal. The learned counsel in. support of his contentions relied upon reported cases titled Muhammad Nazir v. Muhammad Ashraf and 3 others PLD 1987 SC (AJ&K) 16; Mst. Tazeem Akhtar v. Liaqat Ali and 6 others 1997 CLC 692; Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaque and 3 others 1998 PLC (C.S.) 153; Muhammad Ashraf Khan Kayani v. Azad Government and 4 others 1998 PLC (C.S.) 110; Syed Miskeen Shah v. Custodian of Evacuee Property and 4 others 2000 YLR 1088; Boota and another v. Muhammad Sadiq and 4 others 2000 SCR 331; Fazal Hussain v. Walidad Khan and 22 others 1996 SCR 271; Muhammad Ashraf and 8 others v. Azad Government and others PLD 1985 SC (AJ&K) 102; Abdul Janan v. University of Peshawar PLD 1996 SC 709; Abdul Hamid Khan v. Muhammad Zameer Khan and others 1990 MLD 1617. The learned counsel also contended that the Disciplinary Committee cancelled the papers of respondent for a period of one year and this period having elapsed, the appeal had become redundant.

5. After hearing the respective contentions of the learned counsel for the parties, it may be stated that by accepting the writ petition filed by respondent the High Court has recorded a finding in clear terms that Vrce Chancellor was not competent to constitute a new Disciplinary' Committee and to set aside the proceedings of the previous Disciplinary Committee. In I view of the stand taken by the appellants in their written statement and the fact that a definite finding was recorded by the High Court against the Vice Chancellor, he in our view was a necessary party to be arrayed as such in the writ petition. It is a celebrated principle of law that an adverse finding cannot be recorded against a person at his back. Even the findings of. first Disciplinary Committee were set aside by the Vice‑Chancellor and a new Disciplinary Committee was constituted by him, therefore, even on that score he was a necessary party. The High Court set aside the order of Vice -Chancellor constituting a new Committee and directed the other appellants to declare the result of respondent on the basis of cancelled papers. This order could not have been given effect without impleading the Vice‑Chancellor as a party. It is a settled principle of law that where an effective order or decree could not be passed in absence of a particular party that party is a necessary party.

6. So far as the objection of Sardar Muhammad Sayab Khalid, the learned counsel for respondent, that the appeal was incompetently filed by three members of the Disciplinary Committee and the fourth member Ansar Jameel has not filed the appeal thus, the same is incompetent is concerned, that is devoid of any legal force as the decision taken by the first Disciplinary Committee comprising of four members has been set aside by the Vice Chancellor and if the order passed by the Vice‑Chancellor is declared as without jurisdiction then the order recorded by the previous Disciplinary Committee stands revived. This argument, as a matter of fact, does not advance the case of respondent, but on the other hand goes against his interests. Even if we assume the contention of the learned counsel for respondent as correct, Ansar Jameel at the most should have been impleaded as pro forma‑respondent but by not impleading him in the line of appellants, the appeal does not become redundant. The authorities cited by the learned counsel for the respondent have no relevancy with the facts of the case it hand because those pertain to non‑impleadment of necessary party whereas Ansar Jameel was not a necessary party.

7. The other contention of the learned counsel for the respondent that the respondent's papers were cancelled for one year and that period ha elapsed and as such the appeal had become redundant is also devoid of any substance. If the period of conviction had elapsed then in that case the respondent should not have insisted the High Court to issue a writ as prayer for by him.

8. So far as the non‑impleadment of Vice‑Chancellor as a party i concerned, in our view, the High Court has committed an illegality by no asking the respondent to implead him as party nor by doing so on his own

" Court may strike out or add parties .‑‑(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit be added .

This provision clearly authorises the Court to itself add a party whose presence may be necessary in order to adjudicate upon and settle questions involved in the matter. In a case reported as Muhammad Resham Khan v. Chairman, Inspection Team and 3 others 1990 CLC 1355, it was observed that it is elementary requirement that in a writ petition the Government or the person performing functions in connection with the affairs of State whose order is challenged should be made a party. In a case reported as Kh. Ghulam Qadir and 5 others v. Divisional Forest Officer Demarcation and 3 others 1996 SCR 161 it was observed that the appellant did not array Board of Revenue as one of the respondents. Member, Board of Revenue was, however, arrayed as one of the respondents. The writ petition filed before the High Court was not competent on account of non joinder of necessary parties. There are so many authorities in support of the aforesaid proposition. Out of them the cases reported as Mst. Tazeem Akhtar v. Liaqat Ali and 6 others 1997 CLC 692, Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaque and 3 others 1998 PLC (C.S.) 153, Muhammad Ashraf Khan Kayani v. Azad Government and 4 others 1998 PLC (C.S.) 110 and an unreported case titled Mst. Resham Bibi and another v. Walayat Hussain and others (Civil Appeal No.42 of 2000 decided on 2‑11‑2000) may usefully, be referred.

9. In the light of what has been stated above, by accepting the appeal, we set aside the impugned judgment passed by the High Court and remand the case to it with a direction that it shall itself add the Vice‑Chancellor as one of the respondents in the writ petition filed by respondent herein and provide him an opportunity of filing written statement and to proceed with the case afresh in accordance with law. In the circumstances of the case we pass no order as to costs.

Appeal accepted.