P L D 1971 Lahore 829 (PLP)

ZAKI‑UD‑DIN PAL, J.‑The facts giving rise to this petition are that the petitioner was studying at Government Intermediate College, Wahdat Colony and submitted his admission form for annual Intermediate Examination, to be held in 1965. He was allotted Roll No. 30374. His result was declared on 20‑8‑1955 and he was successful in all the papers except Geography in which he was placed in compartment. According to him a Provisional Certificate Annex `A' was issued by the Principal of the College, respondent No. 3, to the petitioner to the effect that he had been placed in compartment in Geography in his annual Intermediate Examination held in 1965. On the basis of that certificate he got admission to 3rd Year class in Islamia College, Civil Lines, Lahore.

2. Thereafter, he submitted his admission form for supple mentary examination in the subject of Geography. He was allotted Roll No. 2074 by respondent No.

1. The examination started at 2‑00 p.m. and at about 2‑10 p.m. he was served with a notice Annex `B' by respondent No. 2 which reads as follows :‑ "From seal The Controller of Examination, Board of Intermediate and Secondary Education, Lahore. No.. . . . . . . . . . . Dated. . . . . . . . . 196 To Mr. Ala‑ud‑Din (Roll No. 2074, Supp. Exam. 1965) House No. 7, Street No. 3, Bilal Ganj, Lahore. Re: Your Admission form for Supplementary Intermediate Examination, 1965. You are hereby informed that you were not eligible to appear in the Annual Examination, 1965 due to shortage of lectures as intimated by your Principal. Your result for the Annual Examination 1965 has, therefore, been quashed. In view of the above you are not eligible to appear in the Supplementary Intermediate Examination, 1965 and therefore your candidature has been cancelled. (Sd.) Asstt. Controller (Exams.) for Controller." The petitioner has now come up to the High Court and has filed the present petition praying for quashing the order of respondent No. 2 vide Annex `B'.

3. The Learned counsel for respondents Nos. 1 and 2 has contended that the petitioner was not eligible to appear in the annual Intermediate Examination held in 1965 being short of lectures in Geography. According to him, the petitioner, however, manoeuvred to get his Roll Number for the said examination. A list of 29 candidates including the petitioner, who were short of lectures was sent by respondent No. 3 to respondent No. 1 intimating that the said candidates being short of lectures were not eligible to appear in the Intermediate Examination, commenc ing from 1st of May 1965. The Board cancelled the candidature of the said candidates and requested respondent No. 3 to return their Roll Number Slips. It is contended that it was done in compliance with rule 1(4) of Chapter 2 at page 129 of the Board Calendar. The petitioner, however, managed to appear in the said examination and was placed in compartment in Geography. According to respondents 1 and 2 since the petitioner was in eligible to appear in Annual Intermediate Examination, 1965, therefore his result of that examination was quashed and his candidature for supplementary examination was also cancelled. Thereafter on the basis of stay order passed by this Court on 22‑7‑1966, petitioner appeared in the Supplementary Examination but his result was withheld by the Board. Then under the orders of this Court passed on 7th of November 1967, respondent No. 2 was directed to provisionally declare the result of petitioner's Intermediate Supplementary Examination of 1967. It was however, made clear by that order that the Intermediate result as well as that of B. A. or any other Examination would stand automatically quashed, In case petitioner's writ petition failed. On the basis of that order, petitioner's result was declared according to which he had passed the said examination. According to the petitioner he has now passed his B. A. Examination in 1968 and M. A. in 1971.

4. The main grievance of the petitioner is that he was never afforded any opportunity by the Principal before recommending, cancellation of his candidature, nor he was given any show‑cause notice by respondents Nos. I and 2 before quashing his Intermediate Annual Examination held in 1965. The result of the petitioner was quashed vide Annex 'B' under rule 18(3), page 163 of the Board Calendar which reads as follows:‑ "

18. The Board shall have the power to quash the result of a candidate after it has been declared‑ (1) if he has been disqualified for using unfair‑means in the examination; or (2) if a mistake is found in his result; or (3) if it is found that he was not eligible to appear In the examination; or (4) for any other reason that may be determined by the Board: Provided that the orders of quashing the result is issued not late than four years from the date of declaration of result of the examination concerned Provided further that if in quashing the result of a candidate under (2) and (3) above, the Board declare a candidate as `failed' who was previously declared to have passed, in 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 the benefit of any privilege that he may have acquired by studying in the next higher class in a recognised Institution or taking an examination conducted by the Board." The learned counsel for the petitioner has also relied upon rule 2 of Chapter XV, page 191 of the Board Calendar which reads as follows :‑ "

2. If the Head of the Institution is not satisfied with the reasons advanced by the candidate, he shall not be bound to condone the deficiency. No appeal shall be admitted against his orders." It is admitted that before taking a decision for quashing the result of the petitioner, he was never issued any show‑cause notice by respondents Nos. 1 and

2. The action was taken on the report of respondent No. 3 about the shortage of petitioner's lectures in Geography. The correctness of this report is, however, challenged by the petitioner. The words "if it is found that he was not eligible to appear in the examination" in sub‑rule (3) of rule 18 as mentioned above clearly contemplate that some sort of enquiry has to be conducted by the respondents before coming to the conclusion that a candidate was not eligible under this provision. That enquiry can be conducted only by associating the candidate concerned whose rights in regard to person and property are to be affected by that decision and for that purpose show‑cause notice is necessary so that after hearing the parties a decision may be taken. It has been argued that there is no provision in the Board Calendar making it necessary to issue show‑cause notice to the person concerned in such cases. We are afraid that this argument has no force. This is now established law that even in the absence of any such provision the principles of natural justice cannot be excluded in all disciplinary proceedings against any person. Any decision made in violation of the principle of audi alteram partem cannot be sustainable in law. Their Lordships of the Supreme Court in The University of Dacca v. Zakir Ahmad (P L D 1965 S C 90) have held that :‑ "Wherever any person, or body of persons, is empowered to take decisions, after ex post facto investigation into facts which will result in consequences affecting the person, property or other rights of another person, then, in the absence of any express words in the enactment giving such power, excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with a duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case." The same view was taken up by their Lordships of the Supreme Court in Chief Commissioner, Karachi v. Dine Sohrab Katrak (P L D 1959 S C (Pak.) 45), Messrs Faridsons Ltd, v. The Government of Pakistan and another (P L D 1961 S C 537) and Abdur Rehman v. Collector and Deputy Commissioner, Bahwalnagar (P L D 1964 S C 461).

5. The application of the principle that "no one can be condemned unheard" has not been excluded expressly by any provision of the Board Calendar. If there is no provision in the said Calendar to issue notice in such cases then it does not mean that in accordance with the principles of natural justice, no such notice will be issued or the Board will not act fairly and justly. Any action which is taken in contravention of the principles of natural justice cannot be called fair and just. It was a very serious matter to quash the result of the petitioner and it could adversely affect his academic career. According to the principle of natural justice and for a fair and just decision, it as incumbent upon respondents Nos. 1 and 2 to issue show‑cause notice to the petitioner before taking such a drastic action. We are of the opinion that quashing of the result without issuing any show‑cause notice is not only in violation of the principles of natural justice but is also in contravention of the provision as contained in rule 18(3), Chapter V, page 163 of the Board Calendar. The result is that the order passed by respondent No. 2 is held as not sustainable in law and the same is, therefore, quashed.

6. Learned counsel for the petitioner has also raised the point that the decision of the Principal, respondent No. 3, in recommending for cancellation of the petitioner's candidature to the Board of Intermediate and Secondary Education, Lahore, was against the principle of natural justice and in violation of rule 2 Chapter XV at page 191 of the Board Calendar, reproduced above. According to him it was incumbent upon the Principal to issue show‑cause notice to the petitioner before making the said recommendation. As we have quashed the order of the Board for the reasons given above we do not deem it necessary to deal with this point at present. This petition is accepted on the lines as indicated above but there will be no order as to costs. Petition accepted.