SHAZIA UMAR CHOUDHRY Versus BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, FAISALABAD

1. Brief facts out of which the present writ petition arises are that petitioner appeared in F.Sc. Pre‑Medical Annual Examination, 1996 held under the Board of intermediate and Secondary Education, Faisalabad under Roll No.27333. Petitioner allegedly secured 845 marks out of 1100 in the said examination. Petitioner submitted admission form for admission in the M.B.,B.S. Course. She got admission in Fatima Jinnah Medical College Lahore. Respondent No.2 issued show‑cause notice to petitioner on 13‑11‑1999 for cancellation of result of the petitioner for the Intermediate (Annual) Examination, 1996 on the ground that the petitioner with the connivance of the officials of the Board managed to replace original result sheet with bogus one and directed her to appear before the Chairman, respondent No.l with written reply on 26‑11‑1999 at 10‑00 a.m. Petitioner submitted reply of the show‑cause notice to respondent No.l Controverted the allegations levelled in the show‑case notice on 13‑3‑2000. Petitioner being aggrieved by the aforesaid show‑cause notice filed civil suit challenging the vires of the notice before the Civil Judge 1st Class, Faisalabad. Respondents Nos.l and 2 filed an application under Order 7, Rule, 11, C.P.C. and the application was accepted and the plaint was. rejected as pre‑mature by the civil Court wide order; dated 1‑3‑2000. Respondents Nos.l and 2 finally cancelled the result of the petitioner vide Notification, dated 16‑3‑2000. Hence the present writ petition.

2. Learned counsel for the petitioner submits that petitioner's past carrier is very excellent as the petitioner secured 689 marks in Secondary School Examination out of 850. She stood first in the Middle examination in the entire sub‑Division and got first position in district in Primary School. Petitioner's father and uncle are former Councilor of Municipal Committee Tandlianwala and has number of political rivals, thus, out of said enmity and jealousy the complaint was filed before the respondent No.l against the genuine result of the Petitioner. The employees of the respondents Nos. l and 2 with the connivance of the enemy of the petitioner's father sent show‑cause notice to the Petitioner qua the genuine result of the petitioner on 13‑11‑1999. The show‑cause notice reveals the detail of marks of the petitioners as follows:‑‑

2. Urdu 109

3. English 95

4. Islamyat 38

5. Pak. Studies 33

6. Physics(theory) . Absent

7. Practical 24

8. Chemistry 23+16+29

9. Biology 22 +24 +41

10. The show‑cause notice further reveals that petitioner with the connivance of the official of the Board managed to replace the original result sheet with the bogus one in which the following fictitious marks have been entered:

11. Urdu 138 instead of 109

12. English 140 instead of 95

13. Islamyat 40 instead of 38

14. Pak.Studies 38 instead of 33

15. Physics(Theory) 164 instead of Absent

16. Chemistry _ 160 instead of 68

17. Biology 165 instead of 97

18. Petitioner submitted reply of the show‑cause notice controverting the allegations levelled in the show‑cause notice that petitioner appeared in all the papers of F.Sc. Examination and was not absent in the paper of Physics (Theory). Petitioner alongwith her real bother Ch. Muhammad Ali visited the office of the respondent No. l on 15‑3‑2000 at 9‑00 a.in and informed his Personal Assistant. Petitioner and his brother remained there for the whole day but they were not given any hearing by respondent No. l and brother of the petitioner was directed to come again on 16‑3‑2000 alongwith the petitioner. She visited the office of the Chairman and she learnt there that ex parte decision was passed against her without hearing. Learned counsel for the petitioner submits that respondents passed the order ex pane without service of the notice to the petitioner. Therefore, same is not sustainable in the eyes of law. He relied upon Irfan Nadir v. University 1996 CLC 550. He further submits that there is no complaint attached with the parawise comments which clearly reveals that the respondents concealed the material facts from this Court which brings the action of the respondents in the area of mala fide.

3. Learned counsel for the respondents Nos. l and 2 submits that show cause notice was sent to the petitioner on 13‑11‑1999 with the direction to appear before respondent No. I on 26‑11‑1999 alongwith the written reply of the show‑cause notice. Petitioner submitted reply of the show‑cause notice to the Controller of Examination on 25‑11‑1999 with the prayer that the next date for appearance alongwith written reply to the show‑cause be communicated to her and in case of her failure, any ex parte action or decision would tantamount to a miscarriage of justice and the same would be void, ab initio. The respondents did not take any action against her on 26‑11‑1999. The respondents sent ;mother registered notice to the petitioner on 3‑12‑1999 for appearance before the respondent No. l in person on 13‑12‑1999 at 9‑00 a.m. positively alongwith her written reply. Petitioner did not appear on 13‑12‑1999 and the respondents sent another notice to the petitioner at her permanent address and copy to the Principal, Fatima Jinnah Medical College on 18‑12‑1999 for the appearance before respondent No. l in person on 4‑1‑2000. On 4‑1‑2000 petitioner did not appear before respondent No. 1. Respondents sent another notice to the petitioner at her permanent address as well as copy to the Principal, Fatima Jinnah Medical Collage, Lahore to appear before respondent No. 1. on 29‑1‑2000. Petitioner did not enter appearance before respondent No. l on 29‑1‑2000. Petitioner filed civil suit before the Civil Judge 1st Class, Faisalabad alongwith application under Order 39, Rules 1 and 2. Learned Civil Judge passed the following order on 16‑1‑2000 in the following terms:‑‑

19. The respondents sent another notice to the petitioner at her permanent address as well as to the Principal, Fatima Jinnah Medical College to appear before respondent No. l on 22‑2‑2000 alongwith her written statement. She did not enter appearance on 22‑2‑2000. She submitted written reply to the Controller on 29‑2‑2000 that petitioner has filed civil suit which is pending adjudication before the Civil Judge 1st Class and the next date for hearing is 24‑2‑2000. Respondents did not pass any final order against the petitioner and also plaint was rejected by the learned Civil Judge on 4‑3‑2000. The respondents sent another notice to the petitioner at her permanent address as well as through the Principal, Fatima Jinnah Medical College to appear before respondent No. l on 15‑3‑2000 in person alongwith her written statement. The respondents sent final notice to the petitioner on 11‑3‑2000 to appear before respondent No.l on 15‑3‑2000. Petitioner failed to appear before respondent No.l and finally respondent No.l cancelled the certificate vide Notification dated 16‑3‑2000. He further submits that respondents tried their level best that petitioner must appear before respondent No.l but the petitioner did not enter appearance and avoided to appear. He further urged that. respondents did not declare the result as is evident from the result gazette which shows that the result of the petitioner was declared as R.L. in the result gazette. The respondents Board did not declare the result of the petitioner till date. Petitioner concealed this material fact from this Court: as the petitioner did not attach any Notification qua the declaration of result. He further submits that petitioner appeared in the Intermediate (Annual) Examination. 1996 as regular candidate under Roll No.27333 and failed in Biology and Chemistry papers as is evident from internal result sheet and counterfoil. Petitioner managed with the connivance of employees of the Board to replace the original internal result sheet with bogus result sheet but she could not succeed in getting to replace the original internal result sheet and counterfoil award list kept in the safe custody in the secrecy of the Secondary Board. . He further submits that findings of the respondents Board are collusive by virtue; of Rule 15(6)(8)(11)(12) of the Conduct of the Examination Rules. He further submits that learned Civil Judge dismissed the suit of the petitioner after proper scrutiny of the record of the respondents.

20. 4 Learned counsel for the petitioner in rebuttal submits that the suit was dismissed being pre‑mature by the learned Civil Judge under Order 7 Rule 11, C.P.C. He further submits that no complaint filed with the report and parawise comments. This fact brings the action of the respondent in the area of mala fide. He further submits that in complaint there are 16 candidates mentioned but the name of the petitioner is not mentioned. Therefore, source of action against the petitioner is highly doubtful. Petitioner attended the office of respondent No.1 alongwith her brother on 15‑3‑2000 and thereafter under the direction of subordinate staff of respondent No.l attended the office of the respondent No.l on 16‑3‑2000 and came to know that ex parte order has already been ‑passed against the petitioner. Petitioner filed affidavit but the respondent did not deny this fact by filing counter‑affidavit.

5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the facts in chronological order to resolve the controversy between the parties:‑‑

(1) Petitioner appeared in Annual Examination, 1996 held by respondents Nos. l and 2 under Roll No. 27333.

(2) Result gazette Annexure "R/2" reveals that the result of the petitioner was declared later on due to fee.

(3) Petitioner got admission in Fatima Jinnah Medical College on the basis of provisional result intimation dated 16‑9‑1996.

(4) Show‑cause notice sent to the petitioner on 13‑11‑1999 with the direction to appear in person before respondent No. t on 26‑11‑1999 with written reply.

(5) Petitioner did not appear on 26‑11‑1999.

(6) Respondents claimed that petitioner has filed reply of the show cause notice before the responded No.2 on 25‑11‑1999 with the prayer that the next date for appearance be communicated to her.

(7) No adverse order was passed against the petitioner on 26‑11‑1999

(8) On 3‑12‑1999 another notice for appearance was sent to the petitioner on 13‑12‑1999 before the Chairman.

(9) On 13‑12‑1999 petitioner did not appear before respondent No.l. No adverse order was passed against her. .

(10) Another letter for appearance on 9‑1‑2000 was sent to her on 18‑12‑1999. at her permanent address and copy to the Principal, Fatima Jinnah Medical College

(11) On 18‑12‑1999 no order was passed against her.

(12) Petitioner filed civil suit before the Civil Judge 1st Class, Faisalabad challenging the vires of the notice, dated 3‑11‑1999 alongwith application for ad interim relief;

(13) On‑16‑1‑2000 learned Civil Judge restrained the respondents to pass any final order but the respondents were allowed to continue their proceedings against the petitioner and petitioner was directed to join the proceedings.

(14) On 18‑1‑2000 another notice for appearance for 29‑1‑2000 was sent to the petitioner at her permanent address and copy to the Principal, Fatima Jinnah Medical College.

(15) On 28‑1‑2000 no order was passed against the petitioner.

(16) Respondents sent another notice for appearance to the petitioner for 22‑2‑2000 on 11‑2‑2000 at her permanent address and copy to the Principal, Fatima Jinnah Medical College.

(17) On 19‑2‑2000 petitioner submits reply to the Controller of Examination on 29‑2‑2000 that she has filed suit against the respondents which is pending adjudication and the next day of hearing is 24‑2‑2000.

(18) On 22‑2‑2000 no adverse order was passed against the petitioner.

(19) Plaint of the petitioner was rejected by the learned Civil Judge vide order dated 4‑3‑2000. '

(20) Another notice was sent to the petitioner for appearance on 15‑3‑2000 on 4‑3‑2.000 at her permanent address and copy to the Principal, Fatima Jinnah Medical College.

(21) On 11‑3‑2000 find notice was also sent to the petitioner for appearance on 15‑3‑2000.

(22) On 13‑3‑2000 petitioner submitted reply of the show‑cause notice.

(23) Petitioner did not appear on 15‑3‑2000 and cancellation order was passed against the petitioner by respondent No.1 and final Notification for cancellation of the certificate was also issued.

21. In case the aforesaid facts are put in a juxtaposition then it appears that the petitioner was afforded a proper opportunity of hearing to appear before respondent No. l but she failed to appear before respondent No. l and as such p there was no other option with the respondents but to make a decision. Petitioner could have appeared to explain her position. In arriving to this conclusion I am fortified by the unreported judgment passed in Writ Petition No. 10504 of 1996, decided on 18‑8‑1999 and Muhammad Afzal v. Mir Nabi Khan and 6 others PLD 1995 Quetta 50. The peculiar feature of the case is that no enmity whatsoever has been alleged against the respondents Nos. l and 2. This fact proves that she is given an adequate opportunity of meeting such charges and the materials used against her and of stating her own case but she herself did not avail this opportunity mala fide. In the given facts, she has been given a fair deal. It is also settled proposition of law that no obligation to offer an opportunity of being heard arises where the authority simply seeks to correct a mistake viz., to cancel an earlier declaration that the 8 petitioner has passed the examination which was wrong because her marks were below the minimum or where a student has secured admission through a fraudulent device. I am fortified by the reported judgment Sureshi v. Berhampur University AIR 1987 Orissa 38 and U.P.J.D.A.C. v. Nandwani (1990) 4 SCC 633. General allegation of mala fides are not sustainable in the eyes of law. In arriving at this conclusion I am fortified by the law laid down by the Honourable Supreme Court in Saeed Ahmad Khan's case PLD 1974 SC 151. Respondents have attached the photo copies of the original record alongwith the report and parawise comments and learned Legal Advisor of the respondents has stated al the bar that copies attached with the report and parawise comments are true copies of the original record as he filed the same after verifying the original which revealed that according to the award lists the petitioner had obtained the following marks:‑‑

1. Urdu. A 42 2. English A 54

22. Urdu. B 67 English B 41

23. Total:‑ 109 Total:‑ 95

3. Islamic Education 38 4. Pak.Studies 33

5. Physics (theo.)A 20 6. Chemistry (theo.)A 23

24. Physic (theo.)B 34 Chemistry (theo.)B 16

25. Total:‑ 54 Total:‑ 39

26. Physics (pr.) 24 Chemistry (Pr.) 29

7. Biology (theo.)A 27

27. Biology (theo.)B 19

28. Total 46 fail

29. Biology (pr.) 41

30. It is pertinent to mention here that external result sheet and counter foils/Award lists are exactly verbatim and have shown the aforesaid position. I have seen the award lists and the counterfoils. These are in due course. There is no justification to doubt the authenticity. This brings the case where the evidence of unfair means is perfectly plain and transparent. Petitioner is beneficiary of the change in the marks. In arriving to this conclusion I am fortified by the following judgments:‑‑

31. Akhtar Ali's Case 1979 SCMR 549, Haider Ali v. B.I.S.E. 1999 YLR 1243 which was upheld by Honourable Supreme in Constitutional Petition No.475‑L of 1999 Suleman Riaz Chaudhry v. B.I.S.E. 1999 YLR 1229 and Amjad Yasin v. University of Engineering & Technology 1999 SCMR 2640.

32. The counterfoils/award lists and external result sheet show that the petitioner did not obtain 845 marks out of 1100 marks as alleged by the petitioner. In this view of the matter the action of the respondents Nos. l and 2 is valid. In arriving to this conclusion I am fortified by the following judgments:‑‑

33. Farrukh‑ud‑Din and others v. Government of Sindh PLD 2000 Kar. 154,

34. Amjad Yasin v. University of Engineering and Technology 1999 SCMR 2604.

35. As mentioned above the petitioner failed to point out any specific mala fide against the respondents Nos. l and 2. Therefore writ petition is not p maintainable as per principle laid down by this Court in PLD 1981 Lah. 371, Saeed Nawaz v. B. I. S. E. I am also fortified by the following judgments:‑‑

36. Chairman B.I.S.E, Lahore v. Ali Mir 1984 SCMR 433

37. R v. Dunsheath (1950) AER 741, and

38. Thorne v. University (1966) AER 338

39. Petitioner as mentioned above did not immediately appear before respondent No. l alongwith the written reply. Coupled with the fact that respondent Board did not declare her result till date. This fact brings the case in the area that petitioner does not approach this Court with clean hands. I am not inclined to exercise my discretion in favour of the petitioner on well‑known principle that he who seeks equity must come with clean hands as per E principle laid down by the superior Courts in the following judgments :‑‑

40. Abdur Rashid's case 1966 SCMR 141

41. Principal, King Eward Medical College v. Ghulam Mustafa 1983 SCMR 196,

42. Nawab Syed Ronaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236,

43. Rana Muhammad Arshad's case 1998 SCMR 1462, and

44. G.M. Malik's case 1990 CLC 1783.

45. It is very strange to note: that on account of the bad action of the officer/official of the respondents did not take any action against their officers/officials. It is pertinent to mention here that students cannot be in a position to use unfair means in the Examination without active support of supervisory staff examiners, employees of Board and Universities. Since the creation of Pakistan there are only few instances where Supervisory staff, examiners or employees of Boards and Universities were convicted and sentenced. Similarly students cannot be able to adopt unfair means/methods without the active support of their parents as the parents have to provide financial aid to their children. This creates following net result of depression/frustration:‑‑

(i) Some of the candidates obtain good marks on account of using unfair means and get admission in good institutions; ultimately would join the practical life in high position in the country. Since they have made the foundation through illegal means, their believe becomes affirm in adopting illegal means to achieve any goal by hook or by crook.

(ii) Due to aforesaid circumstances, candidates/students who obtain good position in college/school examinations would not be able to maintain same in the Examinations held by Universities/Board, F therefore merits on the basis of labour and hard works are frustrated, the sons of poor persons in this way cannot achieve good marks and obtain admission in good institution and ultimately therefore, not in a position to achieve a good position in the society in practical life, which ultimately breads frustration and thereby cause terrorism in the Country. Reliance is placed on Zafarullah v. Board PLD 1981 Lah. 244 Zafarullah v. B.I.S.E. NLR 1981 Civil SC 787.

(iii) In case their parents are lucky then they shall try again, struggle hard to achieve better results and improve their merits otherwise either they will commit suicide or take klashnikov in their hands as is evident from Faiz Malik's case PLD 1992 SC 324. The candidates and parents who have adopted unfair means appear to act I in violation of Injunctions of Islam.

46. The aforesaid circumstances reveal that the final accountability of all institutions in individual his or her action, his or her failure makes or breaks the institution and how should the individual be the institution in our beloved Country by following Qur'an and Sunna. In other words I am being true to be myself to my faith what I profess. In other words my authenticity by my values i.e only possible by strong connection/faith makes us true man. At this juncture it is necessary to reproduce the observation of young students Nosheen who expressed the same in her. article published in Daily Naw‑e Waqat in the following terms:‑‑

47. It will be in the interest of justice that a copy of this judgment be sent to the Chairman of the Board concerned to hold an inquiry as to how it happened that a bogus certificate was issued on behalf of the Board and was placed in the hands of the petitioner. This shows that there are some loopholes in the system of examination conducted by the Board which need to be immediately plugged to attach respectable status to the academic certificates issued by the Board. If need be, the Board can recourse to criminal or disciplinary action, if any of its employee is found to be guilty to the preparation or issuance of r this bogus certificate or other certificates of its kind. The Chairman of the Board shall after holding comprehensive and detailed inquiry will send his finding to the Additional Registrar or this Court so that, if necessary, further action may be initiated to uphold the sanctity of the Educational Institutions in the Country. The Chairman of Admission Commmittee/Principal of King Edward Medical College is also directed to verify certificates of the students positively within three months after admission so that action be taken against the candidates at once who have obtained bogus certificates with the connivance of the staff of respondents 1 and 2. However, in the interest of justice and fair play copy of the order be also sent to Secretary Education, Secretary Health, Chief Secretary Government of the Punjab and Education f Secretary Government of Pakistan who are directed to, look into the matter what is happening in the Board and Universities that the students are penalized ultimately but no action is taken against the culprits who are instruments to provide facilities to the students to obtain bop‑‑

48. For good and suitable system of examination it is the supervisory staff/examiners and employees of the Boards and Universities should be increased qua their duties to achieve the real goal of improvements in education system in the country, coupled with the Constitutional guarantees to avoid the foreign pressure regarding discharge of their statute duties. The abovementioned proposals/suggestions are the need of the day.

49. In view of what has been discussed above, the writ petition is dismissed with the aforesaid observations.

50. Q.M.H./M.A.K./S‑30/L Petition dismissed.