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Petitioner: RIMSHA SHAIKHANI VS Respondent: NIXOR COLLEGE through Board of Directors/Governors and another
Court Name: Sindh High Court Judge(s): Nadeem Akhtar Title:RIMSHA SHAIKHANI vs NIXOR COLLEGE through Board of Directors/Governors
and another Case No.: Suit No,728 of 2015 Date of Judgment:2015-10-15 Reported As: PLD 2016 Sindh 405 Result: Order accordingly Judgment ORDER ORDER ON C.M.A. No, 11653 OF 2015 ' NADEEM AKHTAR, J.--Through this application, the plaintiff has prayed that the defendants be directed to ensure that her results in respect of Mathematics and Economics in the A-Level examinations taken by her in the May-June 2015 session in pursuance of the orders passed by this Court on 05.05.2015 and 06.05.2015 in the present Suit, are released ; and the defendants be directed to issue the school/college leaving certificate along with any other documentation that may be required by her for any purpose, including for admissions elsewhere. 2. This Suit for declaration and permanent injunction was instituted by the plaintiff on 05.05.2015 against Nixor College (Pvt.) Ltd. And its Dean Nadim Ghani. Brief facts of the case, as averred in the plaint, are that the plaintiff was granted admission by defendant No,1 Nixor College (Pvt.) Ltd. In A- Levels in the subjects Psychology, Mathematics and Economics, wherein she continued her studies in the above subjects in the second year of A-Levels. In the last week of March 2015, defendant No,2 (the Dean of defendant No,1-college) called her and informed her that he will not permit her to attend the college or to sit in the final A-Level examinations as she had been taking private tuitions. Through her e-mail, it was pointed out by the plaintiff that more than 200 students were taking private tuitions. Several e-mails were exchanged by the plaintiff and defendant No,2, whereby the plaintiff submitted apologies and defendant No,2 vide his reply dated 05.04.2015 stated that the plaintiff had been forgiven, but the decision with regard to the tuition policy still stood. On 15.04.2015, a personal assistant of defendant No,1 informed the plaintiff that she was permitted to attend the college, whereafter she attended the college regularly without any indication from
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defendants 1 and 2 that she would not be allowed to appear in the final A-Level examinations. On 29.04.2015, the plaintiff was surprised when she was denied the Statement of Entry (SOE) by defendants 1 and 2. Through various e-mails she requested them to issue the SOE, and finally her father had a meeting with the said defendants on 04.05.2015 when he requested them for an early action as the final A-Level examinations were to commence on 06.05.2015 leaving no time for the plaintiff to register privately. Despite the anxiety expressed by the plaintiff's father that in case the SOE was not issued, the whole academic year of the plaintiff would be wasted, defendant No,2 refused to do so. The plaintiff had averred that the conditional admissions granted to her by the Universities of Manchester, Warwick and Newcastle would be wasted in case she was not allowed to appear in the final A-Level examinations. She has alleged that no notice or show cause notice was given to her by the defendants before taking the impugned action against her; the 'No Tuition Policy' of defendants 1 and 2 is violative of the principles of natural justice and Article 10-A of the Constitution ; and, the impugned action taken against her does not fall within the consequences provided in the said policy for violating the same. Allegations of discrimination and mala fides have also been leveled by the plaintiff against defendants 1 and 2. 3. By an ad-interim order dated 05.05.2015 passed on the plaintiff's C.M.A. No,6986/2015, the Nazir was directed to visit the office of defendant No,1 on the same day for obtaining the SOE of the plaintiff to enable her to appear in the forthcoming examinations. It was further ordered that she may be allowed to sit in the examinations to be held between 06.05.2015 to 04.06.2015, and defendant No,1 was directed to write to CIE (Cambridge International Examination) for suspension of their letter regarding cancellation of registration of the plaintiff. As per the report dated 06.05.2015 submitted by the Nazir, the original SOB was handed over to him on 05.05.2015 by the representative of defendants 1 and 2, which was handed over by him to the authorized representative of the plaintiff. 4. On 06.05.2015, C.M.A. Nos.7035/2015 and 7036/2015 filed by the plaintiff came up for orders before this Court. The first mentioned application was filed for initiating contempt of Court proceedings against defendant No,2 for violating the order dated 05.06.2015 ; and the second application was filed praying for a direction against defendants 1 and 2 to ensure that the registration/SOE of the plaintiff with CIE is restored immediately for the subjects of Economics and Mathematics to enable the plaintiff to appear in the examinations of the said subjects. Vide order dated 06.05.2015 passed on the above applications, the Nazir was directed to pursue the matter by approaching the concerned officer on the same day for issuance of another letter for restoration of the plaintiff's status td enable her to appear in the remaining two papers, to ensure that a specific letter is issued in this behalf by defendant No,1, and also to make all efforts to ensure that the plaintiff may appear in her examinations. 5. It appears that in pursuance of the above mentioned orders passed by this Court, the plaintiff was allowed to sit in the final A-Level examinations. She has stated in the instant application that the results of her examination were announced on 11.08.2015. Now her grievance is that despite repeated requests made by her and her family members, defendants 1 and 2 are not releasing her results in the subjects of Economics and Mathematics, though they have released her result in the subject of Psychology, and they are also not issuing her school / college leaving certificate. She has further stated that in view of the defendants' refusal, she approached the British Council (defendant No,3) who refused to entertain her request and asked her to collect her results directly from defendant No, 1 . In the above background, the present application has been filed by the plaintiff seeking directions against the defendants to ensure that her results in respect of Mathematics and Economics in the A-Level examinations taken by her in May/June 2015 are released, and also to issue her school/college leaving certificate along with any other documentation that may be required by her for any purpose, including for admissions elsewhere.
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6. Dr. Muhammad Farogh Naseem, learned counsel for the plaintiff, at the very outset attacked the 'No Tuition Policy' of defendants 1 and 2 by submitting that the same is arbitrary, mala fide, discriminatory, illegal, void ab-initio, of no legal effect, against the fundamental rights and the right of life of the plaintiff, and violative of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. He submitted that the plaintiff could not be denied freedom to seek tuition, whether privately or from schools/colleges. He further submitted that, in view of his above submission, the plaintiff was not obliged to apologize to the defendants as she had not done anything illegal, yet she repeatedly apologized through her various e-mails only in order to save her career and future, hoping that defendants 1 and 2 would realize their responsibility; however, they did not accept her apology due to their arrogant and rigid attitude. It was urged that the impugned action taken by defendants 1 and 2 is extremely harsh, irrational and disproportionate to the act committed by the plaintiff. It was further urged that the impugned actions taken by defendants 1 and 2 are not only against the principles of natural justice, but also contrary to the doctrine of proportionality. In support of this submission, he relied upon (1) Messrs Kulja Industries Limited v. Chief General Manager, W. T. Project, BSNL and others, 2014 SCMR 1748, (2) Muslim Commercial Bank Ltd. V. Ghulam Muhammad Memon, 2008 PLC 40. (3) D. G. Khan Cement Company Ltd. Through Chief Financial Officer v. Federation of Pakistan through Secretary Ministry of Law and 3 others, PLD 2013 Lahore 693, and (4) Ayesha Sabohi v. Inspector-General of Police, Punjab, Lahore and 3 others, 2010 PLC (C.S.) 240. 7. It was further contended by Dr. Muhammad Farogh Naseem that if there was any `No Tuition Policy' which was violated by the plaintiff, defendants 1 and 2 could take only the actions contemplated in the said policy ; namely, by dropping her from the subject in which she had taken private tuitions, by asking her to register privately for CIE, or by asking her to withdraw from the college. He argued that none of the above courses was adopted by defendants 1 and 2, and through the impugned actions taken by them by withholding the SOE of the plaintiff, by cancelling her registration, by not allowing her to sit in the examinations and now by withholding her final results and school/college leaving certificate, they have acted against their own policy and the so- called rules. It was argued by the learned counsel that pending disposal of the Suit, interim relief to the plaintiff cannot be withheld on the ground that if such relief is granted, the final relief would stand granted ; and, where the justice so demands, an interim relief to which a party may be entitled to upon final adjudication of the case, can be granted. To support this contention, he placed reliance upon (1) Government of Pakistan through Ministry of Finance v. M. I. Cheema, Dy. Registrar, Federal Shariat Court and others, 1992 SCMR 1852, (2) Government of Punjab through Secretary, Finance v. Punjab Public Service Commission's Employees Association, Lahore and 12 others, 1992 SCMR 1847, and (3) Al-Jamiaul Arabia Ahasanul Uloom and Jamia Masjid and others v. Syed Sibte Hasan and others, 1999 YLR 1634. Many other cases were cited at the Bar on behalf of the plaintiff which, in my opinion, are not relevant at this stage. In the end, the learned counsel submitted that there is no justification for the defendants in opposing this application as no prejudice will be caused to them in case the same is allowed. 8. On the other hand, Mr. Ahmed Ali Hussain, learned counsel for defendants 1 and 2, strongly defended the action taken by the said defendants against the plaintiff. It was contended by him that defendant No,1 is one of the best colleges in Pakistan; its students/graduates are among those who obtain highest marks in 0-Level and A-Level and as such they get admissions in the universities of highest ratings all over the world ; this has been achieved by defendants 1 and 2 only because of the extraordinary high standard of education and discipline maintained by them; defendants 1 and 2 are against the prevailing private tuition culture; their 'No Tuition Policy' is one of the key factors for maintaining such high standard; and, through the said policy, students are discouraged from taking private tuitions to enable them to concentrate more towards the
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education provided to them within the college by defendant No,1 through its well-trained and experienced teachers. He further contended that at the time of admission in the college, all students and their parents are required to attend a detailed orientation at the college, wherein all rules, regulations and policies, including the 'No Tuition Policy', are explained to them and their consent is obtained to adhere to the same. It was urged by the learned counsel that the plaintiff and her parents not only attended such orientation, but they also gave their written consent to abide by the same. He argued that despite being fully aware of the 'No Tuition Policy' and the consequences for not following the same, the plaintiff deliberately and willfully violated the said policy and discipline of the college, which fact stands proved as she admittedly offered apology for doing so. He pointed out that according to the said policy in case a student requires extra help or tuition in any subject, he/she can be granted such permission by defendants 1 and 2 provided prior approval in this behalf is sought by him/her from them, and provided further such extra help or tuition is taken by him/her from the faculty of defendant No,1 and not from outside or privately. It was urged that since no such permission was sought by the plaintiff and private tuition was taken by her from outside without the approval or consent of defendants 1 and 2, she does not deserve any concession. To sum up his submissions, the learned counsel argued that the plaintiff has come to this Court with unclean hands; she has already obtained ex-parte ad-interim relief by misleading this Court; she cannot be granted any further relief through this application; she should be dealt with strictly; if students are allowed to violate the policies of the college, it will create a bad precedent for the future; and in such an event, the right of defendants 1 and 2 to do business will be seriously affected. In support of his above submissions, learned counsel for defendants 1 and 2 placed reliance on a number of cases which are discussed in the subsequent paragraphs. 9. From the rival contentions of both the parties, it is clear that the controversy involved in this matter revolves around the 'No Tuition Policy' of defendants 1 and 2 as the results and school/college leaving certificate of the plaintiff have been' withheld by them because of the alleged violation of the 'No Tuition Policy' by her, as such the impugned action taken by them is directly linked with the said policy. Thus, without examining the said policy, the fate of this application cannot be decided. To my mind, the questions that need to be examined at this stage are whether the plaintiff was legally bound to follow the said policy; whether the said policy could be legally enforced by defendants 1 and 2 against the plaintiff and, whether the said defendants were justified in taking the impugned punitive actions against the plaintiff for violating the said policy. For ready reference and convenience, the relevant portion of the said policy is reproduced below : "No Tuition Policy ' Almost 80% of 0 Level students in Pakistan avail some form of exam preparation outside of school. At Nixor, we feel that this' limits the student's intellectual drive as well as hampers the ability to think independently and critically. Hence, tuitions at Nixor are prohibited. This increasingly encourages students to take greater responsibility for their own learning. The focus is on a conceptual and holistic understanding of the subject rather than a exam centered approach. Furthermore, regular feedback is given through graded homework assignments and weekend classes. Students who fail to adhere to Nixor's no-tuition policy may have to face consequences such as being dropped from the subject in question, being made to register privately for CIE examinations or being asked to withdraw from Nixor College altogether. " 10. It is an admitted position that defendants 1 and 2 do allow their students to take tuitions, but subject to the conditions that prior permission in this behalf is obtained from them by the students and tuitions are taken only from the faculty of defendant No,1 and not from outside or privately. Learned counsel for defendants 1 and 2 frankly conceded to this position during the course of hearing. Thus, these defendants do realize that despite the high standard of education claimed by
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them, their students may need extra help by way of tuitions, and they are also conscious of the need and importance of tuitions from the perspective of their students. In such admitted circumstances, the question arises whether the right of the students to have education, including extra help or tuitions, of their own choice and according to their own needs, can be restricted, curtailed or denied? It may be observed here that it is undoubtedly the fundamental and unalienable right of every citizen of Pakistan to seek education and it is the corresponding duty of every educational institution to impart the best possible education to its students according to their needs, choice, wishes and desires; and in consideration of receiving the education, it is the corresponding duty of students to pay the agreed education and examination fee to the educational institution, to show respect to the teachers, and also to follow the disciplinary rules of the institution. Before taking any adverse action against a student for the wrong committed by him, it must be ascertained whether such wrong is a legal wrong or a moral wrong. A legal wrong is an act which is legally wrong, being contrary to the rule of legal justice and a violation of the law, the essence whereof consists in its recognition as a wrong by the law; whereas, a moral wrong is an act which is morally or naturally wrong, being contrary to the rule of natural justice. There are some wrongs that may be legal as well as moral wrongs. Likewise, duties or obligations are also of two kinds, that is, legal duties and moral duties. It may be noted that not all the acts which a person ought to do constitute duties. Further, a duty consists in positive acts, and not in mere abstaining from acting. When the law recognizes an act as a duty, it enforces its performance, or punishes the disregard of it. Like wrongs and duties briefly discussed above, rights are also of two kinds, being legal or moral. If a person intends to enforce his interest, which according to him is his right, against another person, such interest / right must not only have legal protection, but also definite legal recognition. 11. After briefly analyzing the legal and moral wrongs, duties and rights, I have no doubt in my mind that acts such as cheating in tests or examinations, violence or vandalism, use of drugs or arms/weapons/ ammunition, obscenity and vulgarity, failure in observing punctuality and maintaining attendance, or any such act which is of serious nature, committed by the students, cannot and should not be allowed or tolerated under any circumstances, as the students are legally and morally bound not to indulge themselves in any of the above, and if they do, then they would be liable to punitive or penal consequences; whereas, all other duties and obligations which the students are required or expected to do, whether by themselves or by the educational institution, are moral duties and obligations the non-performance whereof does not entail any punitive or penal consequences against them nor can they be enforced against them. 12. In order to show the eventualities in which the permanent record of a student is affected or he is removed from the school, my attention was drawn by the learned counsel for defendants 1 and 2 to the print-out of the slides shared by the said defendants with the students' parents during orientation. According to the above, "strikes" are entered in the permanent record of a student if he is involved in "(1) Cheating, (2) PDA, (3) Bunking, (4) Scan and Skip (2 strikes), (5) Smoking in Nixor Uniform, (6) Littering, (7) Ragging, (8) Parking violations"; and after three "strikes", the student is removed from the school if he is involved in "(1) Physical fight, (2) Insubordination, (3) Substance abuse, (4) Vandalism, (5) Tuitions without written permission". Admittedly, it is not the case of defendants 1 and 2 that the plaintiff was involved in any of the eight events in which "strikes" are entered in the permanent record of a student, or in any of the first four events in which a student can be removed from the school. Moreover, they never had any objection to the plaintiff's act itself whereby she took tuitions, which is also permissible according to their policy. They have rested their entire case against the plaintiff on the ground that she took private tuitions without their permission. In such an event, defendants 1 and 2 could remove the plaintiff from the school according to their own orientation, but could not withhold her results or the school/college leaving
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certificate. In my humble opinion, the obligation, if any, to seek permission for tuitions from defendants 1 and 2, was merely a moral obligation the nonfulfillment of which could not expose the plaintiff to any punitive action as observed above. 13. According to the defendants' own 'No Tuition Policy', students who fail to adhere to the said policy may have to face consequences such as being dropped from the subject in question, being made to register privately for CIE examinations or being asked to withdraw from the defendant No,1-college altogether. The word "may" used by defendants 1 and 2 in their said policy is significant. Admittedly, it is an internal policy of these defendants having been developed by them on their own. Therefore, the said policy cannot be deemed to have the force of law by any stretch of imagination, and such internal policies cannot affect or take away the valuable rights of students to have access to their fundamental right of education. Defendants 1 and 2 have taken the impugned action as if the said policy has the force of law, which is not correct in my considered opinion as observed above. However, if their stance is accepted, the word "may" used in the said policy would imply that the consequences mentioned in the said policy for not adhering to the same, were clearly not mandatory and possibly not uniformly applicable to all. In any event, none of the stipulated consequences was invoked against the plaintiff by defendants 1 and 2, and instead the impugned action of not releasing her results and school/college leaving certificate was taken which is alien to their own policy. 14. The argument of the learned counsel for the plaintiff with regard to the doctrine of proportionality and his reliance on the cases of Messrs Kulja Industries Limited, Muslim Commercial Bank Ltd., D. G. Khan Cement Company Ltd., and Avesha Sabohi (supra), cannot be ignored in the facts and circumstances of the instant case. It is now well-settled that laws could restrict human rights, but only in order to make conflicting rights compatible or to protect the rights of other persons or important interests of community; any restriction of human rights not only requires a constitutional sanction, but it must also be proportional to the rank and importance of the right at stake; 'reasonable restriction' or any sub-constitutional limitation on a constitutional fundamental right must also flow from the Constitution to protect lawful rights and interests of others or the society at large; exercise of discretionary powers in which there is no reasonable relationship between the objective which is sought to be achieved and the means or method used for such purpose, or where punishment imposed is wholly out of proportion to the wrong committed, is liable to be quashed by the Court; any disproportionate action would be open to scrutiny not only on the touchstone of the principles of natural justice, but also on the doctrine of proportionality; penalty or punishment awarded must be proportionate to the wrong committed; where the wrong was trivial or committed under compelling circumstances or for the first time, mercy in Islamic Jurisprudence is a rule and punishment an exception; and, the doctrine of proportionality is recognized even in modern jurisprudence. I have found the above-cited cases relevant and applicable to the case in hand. 15. I shall now discuss the following cases cited and relied upon by the learned counsel for defendants 1 and 2: a. In Qamar-ul-Islam v. Institute of Chartered Accountants of Pakistan, 1997 CLC 1192, the institute/respondent-authority was a corporate body having its own rules and by-laws for conducting examinations. The candidate had prayed for personal inspection of his answer scripts and also for a declaration that he was a qualified chartered accountant. The Court declined to interfere in the statutory rights of the corporate body.. b. In Director (Studies), Dr. Ambedkar Institute of Hotel Management, Nutrition and Catering Technology, Chandigarh and others v. Vaibhav Singh Chauhan, (2009) 1 Supreme Court Cases 59, the candidate was found in possession of a slip in the examination, which act was held to be a misconduct, misbehavior and malpractice on his part whether the slip was used by him or not. c. In
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Muhammad Kamran Asghar v. Board of Intermediate and Secondary Education, D. G. Khan and 3 others, 1999 YLR 1019, the candidate appeared in examination by suppressing the fact about his failure in similar examination with the other board and gave false declaration in his admission form at the time of his admission. His admission was cancelled due to…
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