P L D 2001 Supreme Court 26 (PLP)

JAVED IQBAL, J.--The petitioners seek leave to appeal against judgment dated 6-10-1999 passed by learned Division Bench of High Court of Sindh at Karachi, whereby Constitutional petitions filed by the petitioners have been dismissed. As both the petitions pertain to the same judgment they are being disposed of together. 2. . The facts relevant for decision of these petitions are that a group of candidates of Pre-medical, who could not get the admission, addressed a joint complaint to Governor of Sindh, levelling serious allegations against the officials of the Board of Intermediate and Secondary Education, Larkana, including Mr. Ghulam Sarwar Thahim, Chairman, Mr. Khalid Saifullah Chachar, Controller of Examinations, Mr. Imdad Ali Mehar, Assistant Controller, H.S.C., and Mr. Zahiruddin Dawoodpota, Senior Superintendent. It was alleged that those "privileged candidates" paid one lac rupees each to said officials to get the marks tampered and the result altered in their favour to bring them in the position to selection to Professional Medical/Engineering Colleges. In order to examine the above allegations, a Committee, consisting of three officials, was set up for holding preliminary enquiry and the Committee, after spot inspection and examination of record of the specified favoured students, arrived at the conclusion that there were massive mal practices, including forgery and falsification of the record. Mr. Ghulam Sarwar Thahim, the Chairman, was asked to proceed on leave and Mr. Khalid Saifullah Chachar, Controller of Examinations, Mr. Imdad Ali Mehar, Assistant Controller H.S.C., and Mr.Zahiruddin Dawoodpota were placed under suspension vide order dated 24-7-1998. Thereafter, a Committee was constituted comprising Mr. Khadim Hussain Junejo, retired Sessions Judge, Adviser to Sindh Ombudsman, as Chairman, Dr. Allah Rakhio Butt, Professor, Department of Library and Information Science University of Sindh, and Mr. Mehmoodul Hassan Khokhar, Controller of Examinations of B.I.S.E., Sukkur, as Members. After holding enquiry, the Committee submitted its report in September, 1998. The Committee in its report disclosed the names of the students, who got inflated marks as posted in ledger. It also mentioned the actual marls of those candidates. The Committee was of the view that tampering with the record and forgery has been committed.

3. It is mainly contended by Mr. Gul Bahar Korai, learned Advocate Supreme Court that the legal and factual aspect of the controversy has not been appreciated in its ,rue perspective by the learned Division Bench which resulted in serious miscarriage of justice as it escaped their notice that the admission of the petitioners was based on the marks obtained as per marks sheets. Furthermore the result was duly notified on the basis whereof the petitioners got admission in Medical College. It is pointed out that admission was given after due verification of all the papers and learned Division Bench erred while holding that fraud had been committed. It is urged with vehemence that Notification dated 31-3-1999 for depositing mark sheets/pass certificates and office order dated 29-4-1999 whereby the admission of the petitioners was cancelled are illegal and mala fide having been issued in violation of law and the guarantees as given by the Constitution of Islamic Republic 6f Pakistan. It is also contended that the result already notified could neither be cancelled nor amended and thus the subsequent correction in the marks was not a lawful exercise as carried out by the Board. It is argued that opportunity of hearing was not afforded to the petitioners causing a serious prejudice which ultimately resulted in their expulsion from Medical College.

4. Mr. Nooruddin, learned Advocate Supreme Court on behalf of respondent Board has supported the impugned judgment and contended that the entire action was taken after compliance with all the essential legal requirements. According to him the Board was fully competent to rectify an. incidental, accidental and deliberate omissions/mistakes.

5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of record of the case and relevant provisions of law. We have minutely perused the impugned judgment but we are not persuaded to agree that the Board had no lawful authority to issue notification dated 31-3-1999 or as such the same be declared as unlawful having no legal effect simply for the reason that the said notification was issued by the Board persuade to Regulation dated 25-3-1999 and in exercise of powers as conferred upon it under Board Rules No.22, Volume No.III. It is worth mentioning that the said notification was issued after detecting commission of massive malpractices, falsification of record, fraudulent conduct, cheating, fabrication and tampering with record as proved by substituting the "actual marks" with fraudulent and "enhanced marks" to get admission in professional colleges. It may be observed here that a committee was constituted consisting of three members for holding preliminary inquiry and it was found that serious malpractices including tampering with marks sheets had been committed. Subsequently another committee was constituted to make a thorough probe comprising Mr. Khadim Hussain Junejo, retired Sessions Judge, Adviser to Sindh Ombudsman, as Chairman. Dr. Allah Rakhio Butt, Professor, Department of Library and Information Science, University of Sindh, and Mr.Mehmoodul Hassan Khokhar, Controller of Examinations of BISE, Sukkur, as members. The relevant portion of the report of the committee is worth-reading which depicts the unfortunate pathetic conditions prevailing in the educational institutions: "There are glaring examples of tampering of the results. For example in many cases as mentioned above the marks in award lists don't tally with the marks entered in the ledgers. There are several examples of insertion of marks m the award by-the persons other than the examiners with mala fide intentions, The rubbings, cuttings and overwriting are the common features in the ledgers. In many cases the marks posted in Ledger No. l (Original) don't tally with Ledger No.2 (Duplicate). There are also examples of double award lists in which the marks of favoured candidates have been increased."

6. A bare perusal would reveal that it is a classic example of forgery, fraud and falsification of record committed with the connivance of the Board's officers/officials which cannot be ignored for the simple reason that it was committed by the dents who should have worked hard to prove their worth instead of employing fraudulent tactics which must be condemned. In our considered opinion the Board was fully competent to rectify any error in the result or mark sheets irrespective of the fact whether it was notified or otherwise. The question of competency of the Board cannot be agitated. The correction in the ledger containing details of marks could have been made on the basis of admitted authentic Award List. The Board can rectify any mistake and after detection of fraud the Board could not behave like a silent spectator. It would not be out of place to mention here that the admission of the petitioners was cancelled after affording proper opportunity of hearing including show-cause notice and after compliance with all the legal requirements. The action taken by the Board was neither arbitrary nor derogatory to law and does not warrant any interference. It is well-settled by now that "the High Court has no power under Article 199 to go, into the merits of the decision of the statutory bodies and to see whether' '' the action taken or the order passed is correct on merits. This principle applies to both the purely administrative bodies as well as quasi-judicial bodies. The Court, is however, entitled to see whether the public authority has acted within its jurisdiction and bona fide and otherwise in accordance with the requirements imposed by law as conditions of its activity".. AIR 1953 Orissa 121.

7. In the light of touchstone of criterion as mentioned hereinabove and an indepth scrutiny of record would reveal that the Board had acted in accordance with Rules and was fully competent to issue notification dated 31-3-1999 and no illegality whatsoever has been committed. It may not be out of place to mention here that discretionary relief under Constitutional jurisdiction can only be claimed by a person having a bona fide claim and coming to Court with clean hands for enforcement of a legal right obtained in a lawful manner but in the case in hand the petitioners had obtained higher marks with the connivance of Board's officers/officials by committing fraud, forgery and cheating which aspect of the matter cannot be ignored. In our considered view the Court must not be used for retention of ill-gotten or perpetuation of an illegality. The petitioners are not entitled to seek any relief on the basis of their own wrongful and dishonest act because a person coming to Court with sullied hands is not entitled to discretionary remedy because Courts are bound to proceed with the maxim "he who seeks equity must do equity".

8. In the light of what has been discussed hereinabove, the fraudulent. conduct of the petitioners cannot be ignored. The impugned judgment being free from any legal infirmity does not call for any interference and, accordingly, the petitions being devoid of merit are dismissed. Q.M.H./M,.A.K./S-69/S Petitions dismissed.