PRINCIPAL, KING EDWARD MEDICAL COLLEGE, LAHORE vs GHULAM MUSTAFA

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.-This petition for leave to appeal is directed against judgment dated 10-11-1982 of the Lahore High Court; whereby a disciplinary action against a student (Ghulam Mustafa, respon--dent) was annulled, in the constitutional discretionary jurisdiction of the High Court.

2. The relevant facts as summarised in the impugned judgment are that:- "the respondent appeared in F. Sc. (Pre-Medical) Examination, held in the year 1979, under Roll No. 3359 and was declared successful, with 524 marks. He again applied to appear in the same examination as a private candidate without disclosing his first examination. He got a new registered number allotted and attempted the F. Sc. (Pre-Medical) Examination in 1980. He was allotted Roll No. 5783. That time he improved his position by obtaining 717 marks. He then applied for admission to the 1st year M. B., B. S. Which was allowed provisionally for the King Edward Medical College, Lahore.

3. The respondent, thereafter, submitted the `attempt' certificate. It meant to show as to how many attempts were made by him in passing the F. Sc. (Pre-Medical) Examination. Petitioner sent it to the Board of Intermediate and Secondary Education, for verification and to determine as to how there existed a gap between passing of Matric and F. Sc. Examinations. The Board informed petitioner that Ghulam Mustafa had also appeared in 1979 prior to taking 1980 examination.

4. As this fact was not mentioned in the admission from, the respondent was issued with a charge- sheet dated 20th July, 1981, stating that the omission was an offence under rule 619, of the Discipline Rules of the Board. In his reply, the respondent stated that the allegations could fall under rule 6.7

(1) and rule 6.9 was not attracted. The respondent repeated the same when he appeared before the Disciplinary Committee. Respondent No. 4, realising the mistake, on the same date, drafted a fresh charge-sheet under rules 6.7 (1) and 6.9. They also asked the respondent to furnish an immediate reply without adjourning the case further. The Disciplinary Committee then passed the order dated 20th September, 1981, holding that the respondent was debarred from appearing in three examination, subsequent to the Spring examination of 1980. His appeal was also rejected on 24th October, 1981, and hence the present writ petition."

5. The position taken by the parties in the High Court was that the learned counsel for the respondent admits, his alleged omission in the form, which does contain a specific column about it, but contends that as the mere omission to mention, that the petitioner had already appeared in 1979, would not amount to a false representation, it did not entail any consequence whatever, and it could in no way attract such a severe penalty. The learned counsel for the respondent admits that the petitioner was entitled to appear in the second examination of 1980 to improve his marks, even if he disclosed that he had already appeared in 1979 examination. His plea is that the omission was meant to create a possibility for a third attempt. The same position had been taken by the Deputy Controller (Examinations) when he appeared on 21st March, 1982, in pursuance to an order of this Court. He had also stated, in view of rule 15 of the Rules for the Intermediate Examination that no difference would have been made, if the respondent bad disclosed, in his form, that he had appeared in 1979 examination also." The findings of fact by the learned Judge in the High Court are that "in the case in hand the petitioner did fill up column (6-11-10) though it was meant only for those students appearing for the first time. Further, he omitted to fill up column (10) though it specifically pertained to him. He got another registered number though he had been allotted one already. He appeared as a private candidate. It is thus quite clear that the petitioner made mis-- representation in some way and also concealed other facts which he ought to have disclosed.

6. Again had he filled the form correctly, it would have been known that he was not appearing in his examination for the first time but it was his second attempt.

7. The factual position given above shows that the petitioner did make representations which he knew were untrue and concealed facts. It can also be said that he made those untrue representations knowingly and wilfully as he must have understood the contentions of the abovesaid two columns."

8. Notwithstanding the afore stated view of facts, learned -Judge in the High Court held that there was no false representation in the admission form or any other document connected with the examination because an ingredient of false representation was that there should be an intent to induce the victim to deliver property or other valuable thing or right belonging to him or his master or to cause legal injury, which the victim would not have had the representation not been made".

9. This ingredient was culled from discussion of case-law mostly from Indian jurisdiction old while dealing with sections 25 and 415, P. P. C. One of the reasons which influenced the learned Judge to a considerable extent was that the stage for actual wrongful loss or wrongful gain by availing of three chances, if the need had arisen, had not yet reached, therefore; it would not be a case of false representation. With respect, we do not agree with this reasoning. When filling the form, the respondent had through misrepresentation and with intent to make wrongful gain laid basis for defrauding the authorities concerned, if and when a chance arose. It is a different matter that the said chance had not yet arisen when the fraud was discovered by the medical college authority.

10. He persisted in fraudulent acts by making false represen--tation before the medical college authority which the learned Judge in the High Court ignored. 1t also contained a false affidavit in this behalf. The fact that the affidavit was false has not been denied. The phrase "false representation" has been used in rule 6,7(i) in this very sense. The reliance of the learned Judge on the Indian case-law in this behalf was, with respect, misplaced. A recent judgment of this Court in Muhammad Ashraf Qadri v. Principal, King Edward Medical College (PLD1982SC131), having been cited before the learned Judge was not given any importance because he agreed with the learned counsel for the respondent who had argued that the omission/ misstatement in that case had rightly attracted a penalty because the candidate therein would not have benefited, if he had disclosed the correct facts in the form/affidavit. As shown above in this case also when making false misrepresentation, the respondent intended to make wrongful gain of a particular type. Be that as it may, with respect, it is pointed out that the learned Judge in the High Court when trying to avoid application of the rule in the case of Muhammad Ashraf Qadri, ignored the following observation which determined the question of exercise of discretion in writ jurisdiction in favour of a student who submits a false affidavit and/or makes false representation in document connected with attainment in the educational field:- "It cannot be said that the statement contained in the affidavit was not relevant; and the college authorities were not far wrong in insisting on an affidavit, because even that, in the present case, proved to be false. Writ jurisdiction of the High Court is discretionary. It should not be exercised in favour of a person with unclean hands. The petitioner tried to seek admission to a medical college by making misrepresenta--tions, even if the motive, as now contended by his learned counsel to seek further education and that too for adopting an honourable profession was laudable, the means adopted in that behalf were c such that on account of which the person concerned would disentitle himself to any relief in discretionary writ jurisdiction of the High Court."

11. If the learned Judge, again with respect it is pointed out, would have paid due attention to what is quoted above the result would have been different.