DAWARKADAS Versus PROVINCE OF SINDH

1. SYED ABDUR RAHMAN, J.‑ ‑Petitioner Dawarkadas has by this constitutional petition challenged the orders passed by the Board of Intermediate and Secondary Education, Sukkur, dated 15‑11-1984 canceling his result of Chemistry Paper No. I at the H.S.C. Part I, Annual, Examination 1984 and allowing him to appear in the Supplementary Examination thereof on the allegation of using unfair means at the said examination.

2. Briefly stated the petitioner's case is that he had appeared in the H.S.C. Part II Annual Examination 1983 from the Board of Intermediate and Secondary Education, Sukkur and passed the said examination securing 704 marks out of 1100. As he could not get admission in the Medical College on the basis of marks so secured which fell short, therefore, he decided to re‑appear in the Chemistry Paper No. I of H.S. C‑I Examination for improving his result. Consequently he filled in the form and appeared in Chemistry Paper I at H.S.C. Part I, Annual Examination 1984 at Government Naz Pilot Secondary School, Khairpur Centre. On the basis of marks secured by him in that Paper it was declared that his H.S.C. Part II result was improved and that he was declared successful and placed in Garde 'B' securing 735 marks. This result was published in daily newspaper "YADGAR", after it was announced by the Board. A Gazette notification was also published by the Board on 29‑9‑1984 declaring the petitioner successful as shown above. All of a sudden the petitioner received a notice, dated 1‑11‑1984 from the Board mentioning that a report has been received that the petitioner used some unissued material in the Annual examination of H.S. C. Parts I and II of 1984 and had thus used unfair means. He was called upon to appear before Disciplinary Action Sub‑committee in enquiry on 11‑11‑1984 and explanation was also called from him within three days. The petitioner submitted his explanation denying the allegations. On 11‑11‑1984 the petitioner appeared before the Disciplinary Action Sub‑Committee of the Board. He was shown the answer book of his Chemistry Paper I alongwith extra piece of Paper alleged to be copying material in respect of question No. 2, which was allegedly said to have been used by. Certain questions were put by the Sub‑committee to the petitioner which were denied by him. His statement was recorded. He was then allowed to go. On 15‑11‑1984 a notification was issued by the Board whereby the result of Chemistry Paper No‑I of the petitioner at H.S.C‑I, Annual Examination of 1984 was cancelled for using unfair means and he was allowed to appear in the same Paper at H.S. C. Part I in Supplementary Examination 1984. The petitioner preferred an appeal to the Chairman the Board on 22‑11‑1984. He was called upon to appear before the Permanent Appellate Committee on 30‑12‑1984 where his statement was recorded in his own handwriting. He was unofficially informed that the said appeal was dismissed. Hence he has filed this constitutional petition. He has maintained that he had not used unfair weans and the allegations made against him are absolutely false. The handwriting of the so‑called material did not tally. with his handwriting. The petitioner claimed, that he was a brilliant student and his Paper has been cancelled maliciously and his career is completely spoiled. He has, therefore, prayed as follows:‑

(a) To declare that the petitioner is successful candidate having passed Higher Secondary Certificate Part I/II (Classes XI and XII) annual Examination of 1984. Pre‑Medical and decision of cancellation of the result of Paper I Chemistry of the petitioner Pre‑Medical Group by the respondents Nos. 2, 3 and 4 is void ab initio without lawful authority.

(b) To restrain the respondents No. 2, 3 and 4 from implementing the illegal actions and orders passed by them of cancelling the result of petitioner in respect of Paper I Chemistry of Higher Secondary Certificate Examination of 1984.

(c) To direct the respondent No. 5 to grant admission to the petitioner in First Year M. B. , B. S. , of 1984‑85 as per rules.

(d) Any other relief that this Honourable Court deems fit."

3. The petition has been contested by the respondents, who have filed parwawise comments to the same. It was admitted that the petitioner had appeared at the Chemistry Paper I of H.S.C. Part I, Annual Examination of 1984. It was denied that he had successfully passed in that Paper without using unfair means. It is alleged that Superintendent External/ Internal reported that the petitioner has used unfair means at the Examination Hall. It was alleged that un-authorised material was found from the petitioner which tallied with the handwriting of the petitioner and with Question No. 2 of Chemistry Paper I in the answer book. It was admitted that due to rush of work the cases of using unfair means were not be separated when the results were first announced and consequently the petitioner was declared successful by mistake. Subsequently the result of the petitioner alongwith 253 cases of that Centre was separated and show cause notices were issued to all of them including the petitioner. Every opportunity was given to the petitioner of showing cause against the proposed action and he was heard in person as well. It is admitted that he was not allowed to cross‑examine External as it was not deemed necessary. The handwriting of the petitioner was obtained by the Disciplinary Action Sub‑committee as well as appellate committee and it was compared with unauthorised material found from the petitioner which tallied with each other so also with Question No. 2 of his answer book of Chemistry Paper No. 1. It is submitted that the recommendation of Disciplinary Action Sub‑committee was in accordance with rules and procedure. It was additionally pleaded that the petitioner had come to the Court without exhausting the remedy of moving controlling authority by way of final appeal prayed that the petition be dismissed.

4. We have heard Mr. Muhammad Hanif Mangi, Advocate for the petitioner and Mr. Qadir Bux Memon Advocate for the respondents.

5. The main contention of Mr. Muhammad Hanif Mangi, Advocate is that he is a victim of enmity and he was punished in spite of the fact that he had not used any unfair means. He has alleged that the material said to have been found from him was actually never found. Moreover the handwriting on that material did not tally with his handwriting nor the question No. 2 of his Chemistry Paper I tallied with that unauthorised material. Mr. Muhammad Hanif Mangi, Advocate has drawn our attention to rule 4 of rules regarding punishment to the candidates for using unfair means at the examination of Board. It may be reproduced as under:‑

6. Any candidate who fails to part with or is found to have in his possession or accessible to him, papers, books, notes or such other objectionable material relating to the subject of examination of that Paper or is detected giving or receiving assistance or using or attempting to use any other unfair means in connection with the examination or who is guilty of any offence mentioned hereinafter, shall be liable to expulsion from the Examination Hall by the Supervisor/Superintendent of the Centre, or the Controller of Examinations or any other officer duly authorised by the Controller in this behalf, as well as to any other action that the Sub‑Committee may deem fit."

7. He has submitted that according to this rule, it was mandatory for the Board to have expelled the petitioner from the Examination Hall, if he was found using unfair means. We do not find ourselves in agreement with this contention of Mr. Muhammad Hanif Mangi, Advocate. This rule no doubt says that any candidate using unfair means shalli be liable to expulsion from the Examination Hall but it does not say that the Board was bound to expel him from the hall. It is fallacious to argue that if the Board had not chosen to exercise its right to expel the petitioner from the examination hall, the Board had lost its power to take any action against the petitioner on receiving report of using unfair means.

8. The next contention of Mr. Muhammad Hanif Mangi was that once the Board had declared the result that the petitioner was successful having secured 735 marks, it had no power to quash the result so declared. We do not find ourselves in agreement with this contention of Mr. Muhammad Hanif Mangi as well. According to rule 22 of Board of Intermediate and Secondary Education Rules regarding examination such powers did exist in the Board. The said rule is reproduced as under:

9. "22. The Board shall have the power to quash the result of a candidate wholly or partially after it has been declared in case:

(1) he is disqualified for using unfair means in the examination;

(2) a substantial mistake is found in his result;

(3) it is found that he was not eligible to appear in the examination for any valid reasons; or

(4) for any other adequate reason that may be determined by the Board:

10. Provided that the orders of quashing the result are issued not later than three years from the date of the declaration of the result of the examination concerned:

11. Provided further that if in quashing the result of a candidate under (2) and (3) above, the Board declares a candidate as "Failed" who was previously declared to have passed an examination, the Board may after considering the circumstances of the case, take such action as it may deem necessary to give to the candidate benefit of any privilege that he may have acquired by studying in the next higher class in a recognized institution or taking an examination conducted by the Board or a recognized body. "

12. Even otherwise section 21 of General Clauses Act empowers to an authority to recall any order passed by it. The said section may be reproduced as under:‑

13. "21. Power to make, to include power to add to, amend, vary or rescind orders, rules or bye‑laws.‑‑ Where by any or Regulation, a power to orders, rules, or bye‑laws is conferred; then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any orders, rules or bye‑laws so."

14. Mr. Muhammad Hanif Mangi conceded that such powers did exist in the Board but submitted that the said powers cannot be exdrcised once an order had been acted upon. In this connection he has relied upon the following rulings:‑

(1) Shahbaz v . The Crown reported in P L D 1956 F C 46.

(2) Dr. Mahboob Rabbani v. Government of West Pakistan reported in P L D 1963 (W.P.) Lah. 53.

(3) Miss Tayyaba v. The Controller of Examinations, Board of Intermediate and Secondary Education, Hyderabad, Sind and 2 others reported in P L D 1976 Karl[ 481.

(4) Miss. Mahmooda Sultana v. Chairman, Board of Intermediate Secondary Education Sukkur and another reported in P L D 1984 Karl[ 15.

15. We would take up all these rulings one by one.

16. In the first two rulings, it was held that the previous order cannot be recalled if it has been given effect to so that no locus poenitentiae is left because then there will be no occasion for exercise of the power mentioned in section 21 of the General Clauses Act, 1897. Admittedly this is not so in the present case. Neither the result so declared was acted upon nor even according to petitioner's own admission, the mark sheet was issued to him and, therefore, neither of these two rulings would apply to the present case.

17. In the third ruling, there was allegation of adopting unfair means by substituting answer books. Full opportunity was not afforded to accused candidates to defend themselves. The conclusion reached by Disciplinary Action Sub‑Committee, resulting in infliction of punishment were found to be erroneous, resting on suspicion and without any legal proof. It was, therefore, held that punishment was inflicted unlawfully and that the maxim audi alteram partem was violated. This ruling would not apply to the facts of this case because in the case under the ruling, first a statement containing certain accusation was served upon the accused candidates which was substituted by an other accusation which contained marked variation from the earlier. The conclusion of the Committee was based on the fact that there was a strong similarity in the answer books of both of them who were brother and sister inter se and, therefore, the conclusion that both of them had re‑written it in the answer books and had managed to substitute them with the help of Superintendent. The answer books were compared by the Court. Neither the handwritings were found to be similar nor the material nor even the questions in the answer book were similar, whereas in the present case it was not so. The petitioner was found in possession of unauthorised material. The handwriting of the unauthorised material tallied with the handwriting of petitioner and Question No. 2 was ditto copy of that unauthorised material. The petitioner was examined by the Sub‑Committee as well as Appellate Committee and had been given energy opportunity of showing cause.

18. The fourth and the last ruling cited by Mr. Muhammad Hanif Mangi is a case where the Sub‑Committee found material on record insufficient to condemn the petitioner for a serious charge like use of unfair means/practice in examination. The Board, however, cancelled petitioner's Urdu Paper I without giving any reason for not agreeing with finding of sub‑committee. It was held that the decision of the Board was illegal because no reason has been assigned for canceling the petitioner's paper and taking a view contrary to the Sub‑committee. To say the least this ruling is also distinguishable from the present case because neither a different view was taken by the Board on appeal nor is it a case where no reason has been assigned for canceling the Chemistry Paper I of the petitioner.

19. Hence it is clear that none of the above ruling applies to the facts of the present case.

20. Mr. Qadir Bux Memon, who appeared for the Board contended that the petitioner had not availed of the offer to appear at the Annual Examination of H.S.C. Part I of 1984. Hence the matter was no more alive issue. Moreover the admissions to the Medical Colleges were already over. In this connection he has relied upon Disciplinary Committee of the University of Punjab, Lahore and another v. Malik Abdul Majid reported in 1984 S C M R 1302, where it was held as follows:‑

21. "Supreme Court normally does not undertake a purely academic exercise but on basis of an hypothetical case, Supreme Court deals with only live issue."

22. He then relied upon a recent decision given by a Division Benctn of this Court consisting of Mr. Justice lbadat Yar Khan and Mr. Justice Ally Madad Shah in Ghulam Rasool v. Government of Sind and 3 others reported in 1985 C L C 16 where the Board had quashed the result of a candidate on his preparing and using fraudulently a faked marks certificate in place of genuine and debarred him from appearing in examination for 3 years. Repelling contention of petitioner that Board was not competent to take penal action against him, it was held that procurement of second certificate by the petitioner in circumstances amounted to tampering with genuine Marks Certificate and thus he was guilty of having indulged in unfair means within the ambit of 'rule 11 of Rules and punishment awarded to him was within powers of Board. He bas also cited the case of University of Dacca v. Zakir Ahmed reported in P L D 1965 S C 90 and the case of Ahmad and 3 others v. Vice‑Chancellor, University of Engineering and Technology and another reported in P L D 1981 S C 464 in support of his submissions. Finally it was submitted by him that the alternate remedy available to the petitioner under section 13(1) of the Sind Board of Intermediate and Secondary Education Ordinance was not availed by the petitioner and, therefore, the writ petition is incompetent. We find ourselves in i agreement with the contentions of Mr. Qadir Bux Memon. Finally wel may point out that Mr. Muhammad Hanif Mangi has not pressed his contentions regarding failure of Board to allow the petitioner to cross -examine the Superintendent External and his allegations of enmity against him.

23. We are, therefore, satisfied that the petitioner has no case whatsoever. These are the reasons for which we had dismissed the petition by a short order on 10‑3‑1986.

24. A. A. Petition dismissed.