HASAN MAHFOOZ JALISI Versus VICE-CHANCELLOR, UNIVERSITY OF KARACHI

ABDUL MAJID KHANZADA, J. ‑‑‑In this petition, the petitioner named above has prayed a declaration that the cancellation of his Thesis, Examinations, Viva Voce Examination and papers for the Master of Surgery (E.N.T.) Course is unlawful, unconstitutional, ultra vires, mala fide, arbitrary, without jurisdiction/lawful authority, against the rules of natural justice and of no legal effect; and to order the respondents to forthwith announce the result of his said Examination etc.

2. Briefly stated the facts which lead to this petition as disclosed in amended petition are that the petitioner after having passed his M:B., B.S. Examination in 1989 from Dow Medical College, Karachi, did his one year house job at Civil Hospital, Karachi. In July 1991 he passed his D.L.O. Examinations, and was accepted to the Master of Surgery Course in E.N.T. by the Post Graduate Committee of Dow Medical College, Karachi in October, 1991. In May 1992, he was formally admitted to the said course by the respondent No.2 vide its Letter No.BASR 3132/M.S./92 dated 3‑5‑1992, informing the petitioner of his formal admission as a Research Student to the Master of Surgery Course in E.N.T. on the topic, "Head & Neck Cancer: An Analysis of the Incidence, Patters of Treatment and Survival Rates", with a direction to work upon the same under the supervision of Dr. Q.M.H. Jalisi, who as it happens is his father. The petitioner was admitted to the abovesaid course in pursuance of the Resolution No.21 (17) of the Board of Advance Studies and Research of the respondent No.2 and that his father Dr. Q.M.H. Jalisi was also appointed as his research supervisor by the said Board. The petitioner's father was only concerned with providing guidance to him in his research and that he (Dr.Q.M.H. Jalisi) played no part whatsoever at any stage in the evaluation of his Thesis or in the conduct/evaluation of his Examinations. The petitioner carried out his research work on his assigned topic and submitted his Thesis to the respondent No.2 in March, 1994 who sent the same to the International Penal of Thesis Examiners, who evaluated the same and sent their report to the respondent No.2. This report was placed before the Board of Advanced Studies and Research of the respondent No.2, who vide its Resolution No.4 dated 23‑6‑1994 approved it and resolved that the petitioner's examination be held.

3. That under the Regulations of the University of Karachi respondent No.2, the Examinations for the Master of Surgery Course is divided into two parts. Part‑A consisting of Thesis, and Part‑B consisting of Theory and Clinical and/or Practical Examination. As per Regulation‑II(11) of the Regulations for the Master of Surgery Course, only those students are entitled to ‑appear in Part‑B Examinations whose thesis have been approved by the Board of Advanced Studies and Research. Initially, the Part‑B Examination of the petitioner was scheduled to be held in December, .1994, but the same was postponed with the approval of the respondent No. l Dr. Abdul Wahab, and new dates i.e. from 2nd to 6th April, 1995 were fixed vide Letter No.214 dated 21‑12‑1994 issued by the Controller of Examinations of the respondent No.2. The petitioner, accordingly, appeared in the Part‑B Examination of Master of Surgery which was held between 2nd to 7th April 1995, as the Examination set for 6th April, 1995 could not be held on that date as the Examiners failed to turn up, as such the said examination was held on 7‑4‑1995. The results of the said examination of the petitioner were about to be announced when on 16‑4‑1995 a news item appeared in the "Daily Dawn" alleging that certain candidates (whose names were not disclosed) for the Master of Surgery (E.N.T.) Degree had taken serious exception to the alleged "hush‑hush" manner in which the theory examination had been conducted on Friday, the 7th April, 1995 with a single candidate appearing therein, and demanded that the same be declared null and void and re‑conducted in a transparent manner giving equal opportunity to all candidates. On 17‑4‑1995 another news item appeared in "Daily Dawn" reporting that the Pakistan Medical Association, Karachi had expressed concern over the manner in which the theory examination of Master of Surgery in E.N.T. had been conducted on 7‑4‑1995 and had demanded the respondents Nos. l and 3 to order an enquiry into the same.

4. The petitioner agitated the matter with the respondent No.1 in a meeting held at the latter's office on 18‑4‑1995 which was attended by the petitioner, his father Dr. Q.M.H. Jalisi the respondent No .l (Dr. Abdul Wahab), the Controller of Examinations and the Convenor of Examinations (Professor S.H. Zaidi), wherein he (petitioner) was informed that an Inquiry committee headed by professor Dr. M.A. Almani, had been constituted to probe into the allegations of irregularities in the conduct of his Examinations of Master of Surgery. The petitioner protested against the appointment of Professor Dr. M.A. Almani as the Head/Chairman of the Inquiry Committee and he informed the respondent No.1 that there was a personal rivalry and enmity between professor Dr. M.A. Almani and his father Dr. Q.M.H. Jalisi and that his father had lodged an F.I.R. against Professor Dr. M.A. Almani at Eidgah Police Station for an attack upon him in May, 1991 and he also filed a Civil Suit in 1992 against the wrongful appointment of the latter as the Dean, Faculty of Medicine of the respondent No.2. The petitioner also pointed out that the complaint against the conduct of his Examinations by the so‑called "Dr. Javed Shaikh' was entirely fictitious, which was confirmed by none other than the Convenor of Examinations Professor S.H. Zaidi of the E.N.T. Department at J.P.M.C., Karachi who informed the respondent No.1 that no person by the " was serving in the Department at J.P.M.C. The name of Dr. Javed Shaikh" petitioner also conveyed his suspicions to the respondent No.1 that the allegations of irregularities in the Master of Surgery Examinations were engineered by Professor Dr. M.A. Almant who was neither concerned with the affairs of the respondent No .2 University and nor was he a member of the Academic Council or any other body of the respondent No.2, but the respondent Noin complete disregard of justice, fairness and impartiality maintained his decision to appoint professor Dr. M.A. Almani as‑ Head of the said Inquiry Committee.

5. On 18‑4‑1995 the respondent No.2 issued a press release regarding the constitution of the Inquiry Committee, which was reported by the "Daily "Dawn" and other newspapers the next day and the said committee was required to submit its report within 7 days. On 20‑4‑1995 the petitioner wrote a letter to the respondent No.1 wherein he reiterated his submissions made in the meeting of 18‑4‑1995, followed by another letter dated 27‑4‑1995 but to no reply, as such he sent a legal notice dated 2‑5‑1995 through his counsel, to the respondent No.1. On 3‑5‑1995 a press release dated 2‑5‑1995 of the respondent No.2 appeared in "Daily Dawn" disclosing that the Inquiry Committee constituted by the respondent No‑1 had submitted the report of its investigations regarding the Master of Surgery, E.N.T. Examination. The petitioner was dismayed to see the said press release as he was neither informed nor given notice of the convening of the said Committee nor of the carrying out of its investigations. At no stage, was he given a chance of making any submissions whatsoever before the said Inquiry Committee. Furthermore, the said report of the Inquiry Committee was neither communicated to the petitioner nor he was called upon to explain. Petitioner being aggrieved by the withholding and non‑announcement of his result, filed a C. P. No.D‑932 of 1995 before this Court, praying for a direction to be given to the respondents Nos. l and 2 to announce his result.

6. That on 10‑5‑1995, yet another news item was published in the "Daily Dawn" wherein it was clarified and acknowledged by the Editor of the said newspaper that on careful scrutiny there were a number of factual errors in the earlier published news reports regarding the allegations of misconduct in the Master of Surgery E.N.T. Examinations, and the view expressed in such reports was not necessarily correct. An apology was also made in the said news item of 10‑5‑1995 for the wrong impression created by the earlier news reports.

7. That during pendency of C.P.No.D‑932 of 1995, the petitioner received a letter dated 14‑5‑1995 from the Registrar of the respondent No.2, whereby he was informed that his Thesis, Viva Voce Examination, the Examination held and the papers in the Master of Surgery were being cancelled in view of the report submitted by the Inquiry Committee and on account of the views submitted by the Dean, Faculty of Medicine, and due to gross violation of the rules and norms of the Karachi University respondent No.2 concerning the requirements of the Master of Surgery Degree. On receiving the said letter the petitioner withdrew his C.P. No.D‑932 of 1995 having become infructuous. Hence the present petition is filed, with the above prayer.

8. That on behalf of the respondent No.2, its Registrar Mr. Younus Ahmad, in reply to the above petition, filed his counter‑affidavit, disclosing that in consequence of a news item regarding certain unfair practices published in the National Press, accusing of the University and its Officers of serious malfunctioning relating to the conduct of the said examination necessarily tending to lower its prestige and performance in the eyes of every reader of the news, the Secretariat of the Chancellor of the University/Governor of Sindh, felt rightly moved to inquire into the truth and correctness of the same, so as to clarify the position of the University. As such the Chancellor was pleased, in exercise of his statutory powers under sections 10 and 11 (iv) of the University of Karachi Act, to cause an inquiry into the same, directing respondent No.1 to have a proper inquiry instituted, vide his Secretariat letter dated 17‑4‑1995, upon which the respondent No.1 took immediate action in exercise of his Emergency Powers under section 14(3) of the said Act, and, in compliance with the said direction, established the necessary Inquiry Committee, consisting of members of unquestionable integrity and international repute to investigate into the truth of the allegations regarding the conduct of the said Examination. Regarding lodging of F.I.R. and filing of suit by petitioner's father Dr. Q.M.H. Jalisi against Professor Dr. M.A. Almani it is asserted that it is irrelevant for the purpose of malpractice and misconduct under inquiry, seeking to revive a 4 years' old dispute, to which neither the petitioner nor respondent No.1 was a party. It was not necessary to get involved in the letters initiated by or on behalf of the petitioner, apparently intended to divert the attention of the respondents to irrelevant facts for protracting the proceedings of the inquiry. He further asserted that the findings of the Inquiry Committee, arrived at unanimously, were communicated to the petitioner by the letter dated 14‑5‑1995 sent to him. He also stated that, having long experience in the relative field and enjoying an international reputation as regards their integrity and not conceivably liable to be influenced, the report of the members of the Inquiry Committee is based on facts as borne by records, notwithstanding the petitioner's thesis having been approved by the Board of Advanced Studies and Research. The said report deals with the means adopted by or on behalf of petitioner for getting the thesis approved and succeeding in the examination. The report of the Inquiry Committee is based on the available record and approved by the Dean of the Faculty of Medicine that the questions in Paper‑I did not cover principles of General Surgery and that no Surgeon in General Surgery and Head and Neck was present in Viva Voce Examination. It was also found that the petitioner failed to produce the evidence of his continued practice and training abroad in the field of his speciality. Moreover, it was found repugnant to the spirit of fair play and integrity of examination process that the father of the petitioner was appointed as his Supervisor with undue advantages conveniently within his reach, which brought the University into disrepute.

9. Mr. Khalid M. Ishaque, learned advocate for the petitioner contended that the Board of Advanced Studies of the respondent No.2 approved the petitioner's thesis and had further decided that his examination be held. The petitioner also became entitled as a matter of right to appear in the examination as per Regulation‑II (11) of the Regulations of the respondent No.2 for the Master of Surgery Course. The respondent No.1 can neither sit in appeal over the decision and/or approval of the Board of Advance Studies nor does he have any power to overturn or override or undo any such decision and/or approval, as he is himself a member of the Board of Advance Studies in an ex officio capacity and is present at the time of its decision/resolution, approving the thesis of the petitioner and deciding holding of his examination. He also argued that there was no irregularity either in the admission of the petitioner to the Master of Surgery Examination or in the conduct of such examinations taken by him. Even if there was any irregularity as alleged, the petitioner cannot be blamed or penalized for the same as the entire process, from his admission to the Master of Surgery (E.N.T.) Course including the appointment of his father as his supervisor and approval of his thesis, up to the setting and conduct of his examination, was within the control and authority of the respondents, with which the petitioner has no concern and all such actions of the respondents had already acted upon, as such they cannot question the same at this belated stage and the principle of locus poenitentiae shall come into operation. He further contended that the appointment and continuation of Professor Dr. M.A. Almani as the Head of the alleged Inquiry Committee was mala fide, grossly improper and against all rules and canon of justice, after it had been brought to the notice of the respondent No.1 that he had a personal rivalry/enmity with the petitioner's father, duly established from documentary proof. The learned Advocate also argued that neither the respondent No.1 had any authority to appoint the alleged Inquiry Committee nor the respondent No.3 had such powers under sections 10 and 11(iv) of the University of Karachi Act, 1972. He also argued that in violation of the rules of natural justice, the petitioner was not granted any opportunity of being heard or was given any notice to explain his position by the alleged Inquiry Committee, as such the petitioner is condemned unheard, and its any such report carries no legal value. Mr. Khalid M. Ishaque also attacked upon the report of the said Inquiry Committee and in support of his contentions he argued firstly that the said Report shows that the candidate/petitioner was not examined in the subject of Principles of Surgery and it further shows that Paper‑I did not cover principles of General Surgery and did not even cover Neck and Head Surgery and that out of four questions two related to the ear and two to the throat only, for which he submitted that the Paper‑I was set by some Examiner appointed by the respondent No.2, in which the petitioner had no concern, so he cannot be penalized, for no fault of him. Secondly he submitted that the Report also shows that in viva voce examination, one of the three examiners must be a general surgeon, for which he argued that a bare perusal of the rules regarding the examination would show that no such requirement has been stipulated. Even otherwise the appointment of examiners is strictly under the control, power and authority of the respondents, as such the petitioner cannot be held responsible and penalized for the same. Thirdly he submitted that the Committee has seriously questioned the eligibility of the petitioner for the Master of Surgery (E.N.T.) Examination, for which he argued that it was the duty of the respondent No.2 to examine it before admitting the petitioner for the said course; and when the petitioner has already completed his thesis work which were examined by the persons appointed by the respondents and approved by the Board of Advance Study of the respondent No.2 who ordered for holding his examination and such examinations were held and only the result was awaited, so at this belated stage the eligibility cannot be questioned. In the end he submitted that even otherwise any punishment for the breach of rules of the examinations are to be awarded by the Syndicate of the respondent No.2, upon the recommendation of the Unfair Means Committee appointed by the Syndicate for such purpose as per Regulation 14(ix) of the Examination Regulations of the respondent No.2. The Syndicate was completely excluded from the process which culminated in the cancellation of the petitioner's thesis and examinations. This action is taken on the dictation of the others and not on its own independent application of mind. The cancellation of the petitioner's thesis and examinations will have a severe and adverse impact on his professional career in Pakistan and abroad, and will waste a precious year of his training thereby causing him irreparable loss; and that the impugned action has violated the rights guaranteed to the petitioner under Articles 4 and 18 of the Constitution of Islamic Republic of Pakistan, 1973. In support of his contentions the learned Advocate relied upon the following decisions reported in:

(1) PLD 1965 SC 90 University of Dacca v. Zakir Ahmed.

(2) PLD 1966 SC 536 Abdus`Saboor Khan v. Karachi University.

(3) 1994 CLC 2214, Taj Muhammad v. Town Committee, Fatehjung.

(4) AIR 1962 Punjab 117 Faqir Chand Anant Ram v. Gopi Chand and others.

(5) AIR 1963 Punjab 156 Hakam Devi and others v. Phuman Singin Buta Singh,

(6) AIR 1987 SC 2386 Ranjit Thakur v. Union of India and others.

10. Mr. Rehan‑ul‑Hassan Farooqi learned advocate for the respondents Nos. l and 2 contended that in consequence of a news‑item regarding unfair practices in the examination of the petitioner was published in the National Press, upon which the Chancellor respondent No.3 of the Karachi University asked the respondent No. l to inquire into the truth and correctness of the alleged malpractice, vide his letter dated 17‑4‑1995, upon which the respondent No. 1, in compliance of the above directions of the Chancellor, took immediate action in exercise of his Emergency Powers vested in him under section 14(3) of the Karachi University Act, 1972, and appointed an Inquiry Committee. Regarding lodging of F.I.R. and filing of Civil Suit by the father of the petitioner against Professor Dr. M.A. Almani, he submitted that the same is irrelevant for the purpose of the inquiry into a malpractice and misconduct of the petitioner's registration for Master of Surgery (E.N.T.) Course, appointment of his father as his supervisor, evaluation and approval of his Thesis, Setting of his Paper‑1, Viva Voce on Friday etc. He further submitted that it is an old dispute of 4 years and moreover the petitioner was neither party to the said dispute nor the respondents had any concern with it. According to him it was not necessary for the University Authorities to give reply to the letters written by the petitioner regarding enmity of his father with the Head of Inquiry Committee. He also argued that the findings of the Inquiry Committee were communicated to the petitioner by the respondent No.2 through its letter dated 14‑5‑1995; and since the petitioner had the knowledge of the constitution of the Inquiry Committee, as such no other intimation in the shape of show‑cause notice was necessary to be given to him. He has filed the copy of Report of the Inquiry Committee dated 29‑4‑1995 alongwith copy of observations of the Dean of the Faculty of Medicine with the Counter‑Affidavit dated 28‑5‑1995 and supported the same, saying that the said report is based on the available record which shows that the Paper‑I was not set according to rules and the viva voce was also not taken in respect of head and neck and that the petitioner was not entitled to be registered, and examined, as such keeping in view the report of the Inquiry Committee and the observations of the Dean, Faculty of Medicines, the respondent No.1 was justified to order the cancellation of the Registration, approval of Thesis,, Viva Voce Examination and Papers for the Master of Surgery (E.N.T.) of the petitioner. He also pointed that the Inquiry Committee is not a party in the petition, as such no finding can be given against them as such the petition is liable to be dismissed on this score alone. In support of his contentions he relied upon PLD 1981 SC 464, Ahmed and others v. Vice‑Chancellor, University of Engineering and Technology, Lahore.

11. Mr. K.M. Nadeem, A.A.‑G. appeared on behalf of the respondent No.3 and supported the action taken by the respondents Nos.1 and 2 on the advice of the respondent No.3. He argued that malice of one cannot be for all. The respondent No.3, on the news item published in the National Press, being the Chancellor, was competent to take note of the same and to order the respondent No.1 to probe into the matter and to ascertain the truth in the allegations. In the end he argued that the petition is filed at a premature stage as the impugned action of the respondents Nos.1 and 2 not final, hence the petition merits dismissal.

12. We have heard the valuable arguments of the learned Advocates for the parties and with their assistance have gone through the entire record and the law cited by them in support of their contentions.

13. The main question which arises is as to who is responsible to register the petitioner for Master of Surgery (E.N.T.) Course, who appointed his supervisor and who allotted the topic for research on which the petitioner did his research work and submitted his thesis, who examined the said thesis, and on whose directions, who approved the thesis of the petitioner, who made him entitled to appear in the examinations, who set the Paper‑I and under whose direction, who took his viva‑voce examination and which of the topic were included in the same. These admittedly, are the functions of the respondents Nos. l and 2 and the Board of the Advance Study of the respondent No. 2. The petitioner and his father/supervisor had no concern with the same nor any such material ‑is placed on record nor shown to us to prove that in all or any of the above acts and actions, which have already been acted upon by the petitioner as well as the respondents Nos. l and 2, the petitioner has played any part therein, directly or indirectly. The respondents Nos. l and 2 for their fault or the faults of their agents, examiners, paper setters subordinates, Board of Advanced Study, in their actions, under which the petitioner bona fidely acted upon, cannot be allowed to undo the same, through an Inquiry Committee and to punish the petitioner for no fault of his. In these circumstances the Principle of Locus Poenitentiae shall be fully applicable. Reference may be made to the following cases:‑‑‑

(1) PLD 1969 SC 407 Pakistan v. Muhammad Himayatullah.

(2) 1991 MLD 1605 Dr. S.S. Naeemul Hamid v. P.M.D.C.

(3) 1993 MLD 1011 Muhammad Aslam v. K. M. C. and others.

(4) PLD 1988 Lahore 191 Muhammad Zargham v. University of Engg. and Tech., Lahore.

(5) PLD 1985 Azad J&K 17 S. Munib Nazir v. Azad Kashmir Government.

(6) PLD 1980 Pesh. 128 Muhammad Aslam v. V.C., Gomal University.

(7)1993 MLD 1489 Dr. Raza Ahmed Gorsi v. Azad Kashmir Government.

14. The next question, which is also very important, is in respect of show‑cause notice by the Inquiry Committee to the petitioner and hearing or affording chance of hearing to the petitioner by the Inquiry Committee. The admitted position is that the petitioner was not given by notice for any date by the Inquiry Committee, requiring him to participate in the proceedings and that he was neither heard nor afforded any chance of hearing, and thereby he is condemned unheard. The perusal of the Report of the Inquiry Committee, nowhere show that the petitioner was found responsible for the shortcomings and faults in his examination, then how he can be recommended to be punished by cancelling his entire process of his appearance in the said examination. The learned advocate for the respondents Nos. l and 2 during course of his arguments as well as in their pleadings, asserted that since the petitioner is not the party in lodging of F.I.R. and filing of civil suit by his father against the Head of Inquiry Committee, he cannot take benefit of the same. If the same principle is applied that since the petitioner is not connected with the shortcomings, defects and faults pointed out by the Inquiry Committee in his abovesaid examination, then how he is being penalized by the respondents. We are fully satisfied that in the circumstances of the case, the Inquiry Committee, was duty bound to call upon the petitioner to explain his position and to participate in the Inquiry Proceedings, if any, but admittedly no notice was served upon him, as such, in our view, the petitioner is condemned unheard and the Report of the Inquiry Committee has no legal and evidentiary value in the eyes in law. It shall not be out of place to mention that when the appointment of Professor Dr. M.A. Almani as Head of the Inquiry Committee was objected and that too on reasonable apprehension of not getting fair opinion, at the initial stage, due to recorded enmity, it was not proper on the part of the respondent No. l to pay no heed to the request of the petitioner, which also creates reasonable doubt in the mind of a man of common prudence that the proceedings of the Inquiry Committee and their alleged report were not free from dictation.

15. The case PLD 1981 SC 464, Ahmed and others v. Vice‑Chancellor cited by Mr. Rehan‑ul‑Hassan Farooque in support of his contention that no notice was necessary to be given to the petitioner by the Inquiry Committee is not applicable, for the simple reason that after having come to know about an inquiry against the petitioner in said case, he met one of the member and placed his case; but in the instant case it is not the case of the respondent to that after having come to know about the constitution of an Inquiry Committee headed by Professor Dr. M.A. Almani, the petitioner named above met any of the members of the said committee and/or placed his grievances before them, moreover the facts and circumstances of the two cases.

16. In view of the above circumstances and the legal position, we are fully satisfied that the petitioner is being penalized by the respondents, without any fault of him as such we have no option but to declare that all acts and actions towards the cancellation of petitioner's thesis examinations, viva‑voce examination and papers for the Master of Surgery (E.N.T.) Course by the respondents are unlawful, unconstitutional, ultra vires, mala fide, arbitrary and without jurisdiction and lawful authority and of no legal effect, as such we also order the respondents Nos. l and 2 to announce the result of the petitioner's Master of Surgery (E.N.T.) Examination forthwith on the basis of the Thesis already approved and written papers and Viva‑Voce examinations already given by him. We leave the parties to bear their own costs.

A.A./H‑11/K Petition accepted.