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Petitioner: MUNIR AHMED VS Respondent: UNIVERSITY OF BALUCHISTAN THROUGH THE CONTROLLER JUDGMENT
Court Name: Balochistan High Court Judge(s): Mir Hazar Khan Khoso, M. A Rashid, Zakaullah Lodi Title:MUNIR AHMED vs UNIVERSITY OF BALUCHISTAN THROUGH THE CONTROLLER
JUDGMENT
Reported As: PLD 1979 Quetta 131 Result: Petition allowed Judgment JUDGMENT MIR HAZAR KHAN KHOSO, J.-The material facts leading to thin consti--tutional petition are that the petitioner a domicile resident of District Sibi after qualifying himself for Matriculation Examination in the year 1970 from Government High School, Harnai pursued his further studies in the Government College, Sibi from where he cleared his F. Sc. Examination with 388 marks in third division from the University of Baluchistan in the year 1972. To improve the third division, the petitioner as private candidate submitted examination form for annual examination of 1973. Due to illness he could not appear in the examination. However in two attempts I.e. Annual and Supplementary Examinations of 1975, he passed F. Sc. In second division. Besides, simultaneously in the same year he in the Annual and Supplementary Examinations cleared his B. A. Examination. On basis of his improved F. So. Examination, the petitioner succeeded in getting admission in the Bolan Medical College, Quetta. However the facts of improving his division against the rules were disclosed by a vying candidate to the authorities. In pursuance of such disclosure, the respondent No. 1 withdrew his improved F. Sc. Result on account of his fraudulent action. The petitioner agitated before the respondent No. 1 that the action was taken without a notice to him. He therefore requested for copies of certain documents including reasons of the action taken. But all his efforts in this respect ended in vain. However, on 20th June 1977 the Principal, Bolan Medical College served a show- cause notice upon him for cancelling his admission from the Bolan Medical College, on the ground that his improved F. Sc. Examination was in violation of the University Rules. The petitioner re- agitated that the action was without notice and he reminded the respondent No. 1 to supply him the copies and reasons of his action. Whereupon the respondent No. 1 informed him that his case
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was referred to Principal Law College, Quetta for opinion. However again on 23rd August, 1977, the respondent No. 1 informed the petitioner that his result was canceled on the grounds :- (1) that F. Sc. Examination form of 1975 did not mention the fact that the petitioner was improving his division ; (ii) that the University Rules restricted improvement of division in one chance, whereas the petitioner had passed it in two ; (iii) that the petitioner had to re-appear in the examination one year before the next higher examination, whereas he bad taken the higher as well as the F. So. Examination in the same year; and (iv) that he had appeared in two examinations simultaneously in contravention of the University Rules, which prohibited from doing so. The petitioner failing to get any other adequate and effective remedy has filed the constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan and has assailed the decision of the two respondents and has further prayed that the same orders be declared as to have passed without lawful authority. At the outset it was contended by Mr. Basharatullah, the learned counsel for the petitioner that the respondent No. 1 had erred in his finding that the petitioner had not disclosed in his examination form of 1975 (Annual) that he was improving his division. According to him the petitioner bad given full particulars in his form. Mr. S. H. Jaffri, the learned counsel for the respondent No. 1 was directed to produce the original form before us. However he reluctantly produced the same. We found that the petitioner had fully given the particulars in the form. Indeed Mr. Jaffri had no explanation for the same. It was next contended by Mr. Basharatullah that the impugned orders were passed without. Affording the petitioner an opportunity of being heard in clear violation of the principles of "Audi alteram parten". There is substance in his argument. The decisions dated 10th June 1977 Exh. B and A 23rd August 1977 Exh. H show that the petitioner was neither heard nor given notice thereof. The decisions are reproduced here :- "Exhibit B." The following candidates have been disqualified by the University of Baluchistan for appearing in the Examinations of the University for the period noted against names for using unfair means in the Examinations. Roll No.Name and Father'OffencePeriod of Name Disqualification 416 B. A.Tariq Hameed s/oPossession of copy.This Examn. Can-- (Supp.) 76Abdul Hameeding material andceledeligible turned into piecesto appear in all his Answer Book.Subjects from (A) Exam. 1978. 74 F. E. L:Kamal Khan s/oPossession of Copy--do-- (A) 1976.H. Murad Khan.Ing Material quarel-- led and misbehaved with the Supervisory staff. 1043 Inter-Munir Ahmed s/oBy fraudulent wayHis Examn. Result mediateHayatullah Khan.Appeared again inbearing Roll No. (Supp.)the Intermediate1943 (Supp. 75 1975.Examination.Cancelled, how--
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ever his result of Examn. Roll No. 578 of 1972 remains valid. (Sd.) Controller of Examinations, University of Baluchistan, Quetta. "Exhibit H." Finally after thorough checking of the record by the unfair means Committee on the point raised by Munir Ahmed in his appeal/ application, the Unfair-means Committee recommended that the previous decisions of cancellation of the Intermediate result 1975 of Munir Ahmed should remain valid. Although this punishment is a very lenient one in comparison with his fraud with the University. The reasons for the cancellation of the result are as under :--- (1) Mr. Munir Ahmed did not mention in his Intermediate form 1975 Annual, that he was improving the Division. Thus he has violated the rules laid down by tile University. (2) According to the rules for improvement of Division a candidate will be given only one chance to improve his Division, while Munir Ahmed availed two chances, i.e. Annual and Supplementary, 1975. (3) For Improvement of Division a candidate must appear at least one year before taking the next High Examination, while Munir Ahmed appeared in Degree Examination of the University of Baluchistan, Quetta in Annual 1975 under Roll No. 490 and failed. Intermediate Exami--nation for Improvement of Division up to 1974. (4) Mr. Munir Ahmed has violated another rule of the University by appearing simultaneously in two public examinations, i.e. Intermediate and Degree in 1975. You are finally informed about the final decision of the University in this case, so that you could finally settle the issue strictly according to the rules. (Sd.) Controller of Examinations, University of Baluchistan, Quetta. Mr. S. H. Jaffri, the learned counsel for the respondent No. 1 conceded that the decision dated 10th June 1977 was taken without show-cause notice to the petitioner. But he maintained that the second decision dated 23rd August, 1972 was taken on an appeal from the petitioner. He submitted that as the decision dated 23rd August 1977 was cancelled, the petitioner ought not to have any grievance against the first order. According to the learned counsel, the second decision superseded the first order. The learned counsel further vehemently argued that the second decision was taken on an appeal from the petitioner himself as such it was not incumbent Upon the respondent No. I to have heard him in person. According to the leaned counsel that the second action of the respondent No. 1 was not in violation of the principles of the natural justice. We had directed Mr. Jaffri to produce before us the number of appeal, which the petitioner had filed, before the respondent No. 1. He submitted that the Exh. C and Exh. F were the relevant documents. The documents are reproduced here for convenience;----- "Exhibit C." The petitioner begs to submit as under;--- (1) That petitioner has now come to know of order dated 10-6-77. Hence before no notice was ever given to him. It is thus to apply that the petitioner may be informed of the reasons leading to the making of the order dated 10-6-77, (it) he may be supplied with the copy of the complaint if any filed against the
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petitioner, (iii) the Rules according to which action as taken, can be taken.' It is further to request that the petitioner may also be supplied copies of admission forms for F. Sc. Supplementary 1975, (it) Card issued to him allowing him to appear for Physics theory up to Supplementary, 1978. It may be added that petitioner appeared in 1972 and passed his F. Sc. In 3rd Division. He appeared in 1975 Examination and cleared all papers except F. Sc. Physics." "Exhibit F." "In connection of my application, dated 24-6-77. It is again submitted as under :- (1) That petitioner has now come to know of order dated 10-6-77. Hence before no notice was ever given to him. It is thus to apply that the petitioner may be informed of the reasons leading to the making of the order dated 10-6-77, (ii) he may be supplied with the copy of the complaint if any filed against the petitioner, (iii) the rules according to which action as taken, can be taken. It is further to request that the petitioner may also be supplied copies of admission forms for F. Sc. Supplementary 1975, (ii) Card issued to him allowing him to appear for Physics theory up to Supplementary, 1976. It may be added that petitioner appeared in 1972 and passed his F. Sc. In 3rd Division. He appeared in 1975 Examination and cleared all papers except F. Sc. Physic. An early reply is requested." The documents reveal that the petitioner had asked for the reasons of the decision dated 16th June 1977 and for supplying him the copies of the complaint examination form, University Card, the relevant rules and etc. Manifestly these applications were not the memo. Of appeals. I am convinced that the petitioner did not file any appeal against the decision, before the respondent No. 1. Eventually it cannot be said that the second order was made on an appeal initiated by the petitioner. Indeed, the contention of Mr. Jaffri under such circumstances fails. In the result, I am constrained to hold that the decision dated 23rd August 1977 taken by the University was on its own surmise. The second order too did not show that any notice was served upon the petitioner or he was heard in person. Mr. Jaffri" candidly admitted that neither the petitioner was heard in person nor a show cause notice was given to him. However, he stressed that neither it was incumbent upon the respondent to have given show-cause notice to the petitioner nor to have heard him in person. According to the learned counsel the rules did provide for issuance of such notice or of given personal hearing. Indeed the contention of Mi. Jaffri appeared to be illogical and, devoid of force. On the other hand, Mr. Basharatullah the learned counsel repudiated the contentions of Mr. Jaffri and submitted that "ex post facto" investigations affecting the person, property or right in absence of express words in the Statute excluding the right of show-cause notice or personal hearing, the Courts of law had to follow the principles of natural justice. The learned counsel fortified his stand with case the University of Dacca and another v. Zakir Ahmed (PLD1965SC90), where it was held :- "From a careful review of the decisions, cited before us it appears that wherever any person or body of persons is empowered to take decisions after ex post facto investigation into facts which would result in consequences affecting the person, property or other right of another person; then in the absence of any express words in the enactment giving such power excluding the application of law are inclined of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with the duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of given case." Admittedly, in the instant case, no show-cause notice or personal hearing was given to the petitioner, though on face of it the order indicated to be detrimental to the interest of the petitioner. Besides, the order was passed in "ex post facto" investigation against the petitioner. In my humble
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opinion, such order could have never been passed without a show-cause notice or hearing of a person on the principle "Audi alteram parten". In the instant case, indeed the respondent No. 1 had failed to follow the principles of natural justice. By this time a wealth of law has been treasured by our Courts that any order of such nature passed by judicial or quasi judicial or executive authority in violation of the principles of natural justice would be illegal, void and ineffective. It was further vehemently argued by Mr. Basharatullah that the University had no authority under any rule to rescind the result. However Mr. Jaffri invited our attention to Exh. R/M, whereby the Academic Counsel vide its decision dated 29th December, 1973 had resolved that no student should be permitted to be enrolled for two University Examinations, in the same year with only exception of the subject of the law. If a candidate concealed the facts and appeared in more than one University Examinations during one year, the result of one or both the examinations might be cancelled. The learned counsel maintained that rule 19 (2) of the University Ordinance had conferred powers upon the Academic Counsel to make regulations for the proper conduct of examinations. Indeed Mr. Basharatullah could not repudiate the contention of Mr. Jaffri. It was then argued by Mr. Jaffri that rule 19 of the Board of Intermediate and Secondary Education, Lahore regulated the procedure for improving division by re-appearing. The rule reads :----- "Notwithstanding anything to the Contrary in these Rules any candidate who has passed the Intermediate Examination in the Third/Second Division may be permitted to improve his division be re-appearing as a private candidate in any subsequent examination; Provided that;------ (a) he appears in the Intermediate Examination Part I and Part II together; (b) he re-appears at least one year before taking the next higher examination ; (c) he will be given only one chance to improve his division. Such a candidate, if he improves his division shall be eligible to receive a new certificate on surrendering his previous certificate for cancellation. A candidate who fails to improve his division shall retain his original certificate." According to Mr. Jaffry, the rules were adopted by the Board of Intermediate and Secondary Education, Quetta and the University of Baluchistan, Quetta. The learned counsel relied on section 29 of the University of Baluchistan, Ordinance I of 1970. It reads :- "Notwithstanding anything contained in section 5 of this Ordinance, everything done, action taken, jurisdiction or power conferred, recognition granted, and order issued under any of the provisions of the West Pakistan Boards of Intermediate and Secondary Education, Quetta, Karachi, Hyderabad and West Pakistan Board of Technical Education, Lahore and the University of the Punjab Ordinance and the regulations and rules made thereunder, shall if not inconsistent with the provisions of this Ordinance and the regulations and rules made thereunder, be continued and so far as may be, deemed to have been respectively done, taken, conferred, granted and issued under this Ordinance and the regulations and rules made thereundes." Indeed facts as stated above have evidently established before me that the petitioner had improved his division in clear violation of the standing rules. Under such circumstances, the University was competent to cancel the result of the petitioner. There are express provisions in the rules for taking such action. In the case, Rabat Siddiqui v. Board of Intermediate an Secondary Education, Lahore and another (PLD 1975 Lah. 257). It has been observed that :- "If a person is disqualified from passing a particular examination, the question of declaration of his result in that event, would no arise, and if the candidate can manoeuvre otherwise, such declaration of his result being void ab Initio would be non-existent in the eyes of law, and any proceeding to quash the same would be unnecessary and futile. I am, therefore, of the opinion that even after the declaration of the result of the petitioner it was competent for the Board authoritie to have initiated action against him under rule 8 (iv). "
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I am in full agreement with the proposition laid down above. The result of the University is not clothed with such sanctity that it could not be E touched by the University after it is declared. It was then vehemently stressed by Mr. Basharatullah that under the principles of "Locus poeni--tentiae" power of rescinding was available to the relevant authority till a decisive step was yet to be taken by the authority. According to him, in cases where once the order takes legal effect, it creates vested right in favour of the person, as such the authority could neither withdraw nor rescind it. Mr. S. H. Jaffri, the learned counsel for respondent No. 1 vehemently repudiated the contention of Mr. Basharatullah. He argued that if the stand of the learned counsel is accepted then rule Exh. R/M would be redundant. I am in full agreement with his argument. His argument appeared to be logical. It would be highly be unreasonable to allow a person to benefit from his fraud and misrepresentation, Naturally such action could be taken only after it had come to the knowledge of the authority. There being express provision under the rules for cancelling the result, the provisions of section 21 of the General Clauses Act nor the rule of "locus poenitentiae" are relevant with the instant case. Mr. Muhammad Yousuf Chaudhary, A. A: G. Appearing on behalf of the respondent No. 2 argued that his client had taken the action against the petitioner on the basis of the decision of the respondent No. 1. According to him so long the decision of the respondent No. 1 remained intact, the petitioner did not had the right to continue his studies in the Medical College. He maintained that his act was subject to the action of respondent No. 1. However, in the preceding paragraphs, I have held that the decision of the University cancelling the result of the petitioner was in violation of the principles of natural justice. Indeed, it will not entitle the petitioner to get perpetuated his fraud. At the most, the case could be remanded to the University for deciding the matter afresh giving notice to the petitioner. Indeed the action of remand would be a rehearsal only. The result obtained would be same. Besides I am reluctant to give relief to the petitioner for the reason that he had fraudulently improved his division in clear violation of the University Rules. Relief under Article 199 of the Constitution of the Islamic Republic of Pakistan is equitable relief. The relief could be given to undo injustice but not to aid injustice. In the Assistant Registrar, Co-operative Societies, Bahawalpur v. Haji Muhammad Ajmal and 4 others (PLD 1975 B J 22), it was held :- "The important question that arises for consideration is whether the equitable jurisdiction of this Court should be exercised in favour of such a petitioner. In Abdul Wahid. Khan v. Custodian of Evacuee Property and others PLD 1966 Quetta 25, it was held that;------ `it is a settled principle of law and equity that a person invoking the equitable jurisdiction of the Court should come with clean hands. Anybody whose own role is not above board should not be allowed to invoke discretionary jurisdiction. We are convinced that the conduct of the petitioner from the very outset has rather been dubious and shady. Therefore, the Court would not grant any relief to the petitioner." In Tando Adam Transport Company Limited v. Member, Board of - Revenue (PLD 1967 Kar. 527) it was held as follows :- "The Courts have repeatedly held that a party seeking relief under the exercise of extraordinary jurisdiction of the High Court relation to constitutional writs or orders must come to Court with clean hands, otherwise the party may disentitle itself to any relief on that grounds alone." In Md. Jurau Mondal v. A. H. Chaudhary, District Judge, Jessore (PLD 1969 Dacca 516) it was held that :- "Jurisdiction under this Article is not one which can be invoked by one who is guilty of bad faith and unconscionable conduct. The right is in the nature of ex debito justitiae, but will only be granted if the petitioner can show that his conduct has not been such as to disentitle him of such a relief. This jurisdiction of High Court should not be exercised if it lands ultimately in a patent injustice."
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In a Lahore case reported as Messrs Nau-Asia Trading Co. Ltd. v. Sh. Saeed Ahmad, Civil Judge and another (PLD 1966 Lah. 268) it was held as follows :----- "The petitioner-Company by reasons of its vaxatious conduct was disentitled to, what after all was, a discretionary relief under Article 98." In case reported as Ramzan v. Chief Settlement and Rehabilitation Commis--sioner (PLD 1968 Lah. 258) it was observed as follows:- "Since the petitioner seeks to invoke, what after all is equitable jurisdiction of this Court and is guilty of suppression of material facts, I regard it to be a fit case in which he should be refused any relief regardless of the merits of the case." It was held in Mirza Muhammad Shafi v. The Collector, Sheiknupura and others (PLD 1968 Lah. 403) that :--- "The petitioner is not entitled to the grant of a relief in this discretionary jurisdiction, for he seeks the relief on the basis of a wrongful and dishonest act committed by himself." Further getting relief in this case would amount to injustice inasmuch as that the appellant shall be forced to start fresh proceedings against Sh. Saeed etc. With regard to House No. 11/A purchased by them from respondent No. 4. It was held in Tufail Muhammad and others v. Raja Muhammad Zia Ullah Khan etc. That no writ will issue if it would issue in aid of injustice." In case of Tufail Muhammad and others v. Raja Muhammad Ziaullah Khan, Claims Commissioner, Lahore and another (2), it was held :---- "The writ jurisdiction is not to be exercised in aid of injustice." The same proposition was the subject-matter in case of Wali Muhammad aced others v. Sakhi Muhammad and others (PLD 1974 SC 106), where it was held :-- "Grant of relief in writ jurisdiction being entirely discretionary with the High Court, the learned Judge would have certainly acted in aid of justice in refusing any relief to the respondents on the facts of the case, even if because of any technical reason, the order of Khan Saeed-ud-Din Khan was not strictly found justifiable. It is well-settled 'principle that the High Court's writ jurisdiction can be invoked in aid of justice and not to help retention of ill-gotten gains." In view of the circumstances discussed above, I decline to allow the relief to the petitioner. In result, the petition stands dismissed with costs. M. A. RASHID, J.-I had the advantage of reading, in advance, the lucid judgment proposed to be delivered by my learned brother, Mir Hazar Khan Khoso, J. While I am in respectful agreement with the view of my learned brother that the impugned order is inoperative by reasons of having been passed without notice, I am unable, with greatest respect, to subscribe to the proposition that the principle of locus poenitentiae was not attracted in the instant case, or that the petitioner has come with unclean hands. For the purposes of giving my view I need not re-state the facts which are given so lucidly in the judgment of my learned brother. The power to recall an order, in accordance with the principles enunciated in section 21 of the General Clauses Act, is always recognised. In Shahbaz v. The Crown (PLD 1956 F C46) the Federal Court held that `in fact existence of such power is necessary in the case of all authorities empowered to pass orders under a statute or regulation ---In the present case the power to cancel a certificate, awarded earlier by the University, is given in rule 19 of the Board of Intermediate and Secondary Education, Lahore, as it stood adopted by virtue of section 29 of the University of Baluchistan' Ordinance, 1979, and produced in extenso in the judgment of my learned brother. So there is no doubt that in accordance with the general principle of locus poenitentiae, as well as the rules governing such grants of certificate, the University had the power to recall or cancel such certificate.
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But the question for determination in this case is if such powers could exercised at all stages, even though certain consequential…
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