P L D 2000 Karachi 154 (PLP)

NAZIM HUSSAIN SIDDIQUI, C.J.

This judgment will dispose of Constitutional Petitions Nos. D-541, 567, 639, 647, 678 to 680, 735 to 737, 795 to 799 of 1999. In all these petitions, common questions of facts and law are involved.

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 exalted marks were awarded to a few candidates to favour them. Further, 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.

3. 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 practice, 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 of Mr. Khadim Hussain Junejo, retired Sessions Judge, adviser to Sindh Ombudsman, as Chairman, and 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 terms of reference for the Committee were: Terms Nos. 1 and 2.--(i) To check thoroughly record of examinations especially Intermediate Annual/Supplementary Examination 1997 (Ire-Medical and Pre-Engineering) Parts I and II compare Award lists and Ledgers and find out inconsistencies/discrepancies. To list out all such results in which tampering and interpolation in record has taken place. (ii) To prepare new merit list of Pre-Medical and Pre-Engineering Examination of 1997 based on actual results established after enquiry. To suggest ways and means by which the actual deserving candidates may be accommodated in place of those who have been favoured dishonestly."

4. The Committee in its report disclosed the names of the students, who got inflated marks as posted in ledger. It also mentioned the actual marks of those candidates. The factual position regarding the inflated marks of the petitioners and their actual marks is as follows:-- ________________________________________________________________________________________ Inflated Actual S.No. Seat Name/Father's Name Marks as Total No. shown in Marks Ledger __________________________________________________________________________________________ 1. 62832 Farkhuddin s/o Din Muhammad 830 800 Pathan 2. 51786 Farha Agha d/o Agha Sanaullah 867 837 3. 88896 Hameeda Begum d/o Syed Mithal 853 814 Shah 4. 55644 Ainbar d/o Agha Khan 842 770 5. 52567 Shabir Ahmed s/o Ghulam Hyder 850 818 6. 52542 Muharam Ali s/o Gazi Khan 844 800 7. 53293 Shahzado s/o Sikandar Ali 844 786 8. 56809 Ahmed Hussain s/o Ameer Ali Shah 841 801 9. 50596 Shahida d/o Shafi Muhammad Shah 859 805 10. 88978 Tariq Ali s/o Ghulam Muhammad 873 814 11. 52582 Meena d/o Lachman Das 823 794 12. 89270 Deedar Ahmed s/o Rehmatullah 851 817 13. 50521 Farzana d/o Raja Gh. Hussain 825 790 14. 55772 Ghulam Asghar s/o Ahmed Bux 862 808 15. 55839 Rafique Ahmed s/o Muhammad 880 844 Qasim ____________________________________________________________________________________________

5. The Committee in its report stated that it had to confine and concentrate largely on the two sets of documents, namely, Award List and the Ledger, as at that time answer scripts were not available and were allegedly disposed of in April, 1998. The Committee in its report, stated:-- "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 to the Ledgers. There are several examples of insertion of marks in the award by the persons other than the examiners with mala fide intentions. The rubbings. cuttings and over writings 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. The petitioners have challenged the Notification, bearing No.BISE/HSC(S)/LRK/-121, dated 31-3-1999, issued by the Board of Intermediate-and Secondary Education, Larkana, which is as follows:-- "NOTIFICATION 'In pursuance of Resolution No. l passed by the Board in its meeting held on -3-1999, it is notified for the information of all concerned that having the authority vested under Board's Rule No.22 of Volume 111, the Result of HSC Part II, Annual Examination of 1997 announced on 24-9-1997, in respect of those 69 candidates, who were reported by the Enquiry Committee are awarded 'actual marks' obtained by them in the said examination and as determined by the Enquiry Committee. They are instructed to deposit their Marks/Pass Certificates issued to them and receive fresh Marks/Pass Certificates in lieu of actual marks obtained by them as per list attached. All concerned are requested to give this notification wide publicity. (Sd.) PROF. IRSHAD ALI SOLANGI, CONTROLLER OF EXAMINATIONS."

7. Petitioners, Ms. Farzana, Deedar Ahmed, Meena Kumari, Tarique Ali, Rafique Ahmed and Ghulam Asghar have also challenged the order dated 29-4-1999 of Principal and Chairman, Selection Board. Chandka Medical College, whereby their admissions were cancelled for submitting incorrect/false Marks-sheets.

8. M/s. Abrar Hassan, M.L. Shahani and Ghulam Qadir Jatoi argued the case of the petitioners and Mr. Ghul Bahar Korai adopted their arguments.

9. Mr. Abrar Hassan contends that said notification is illegal, as it was issued without affording an opportunity to the petitioners of being heard. According to him, the other students continued to enjoy their admissions and only a few were selected for punitive action. Mr. M.L. Shahani has argued hat said notification is based upon void enquiry as the same was conducted in violation of principles of natural justice and no show-cause notices were issued to the petitioners while the enquiry was being conducted. He also argued that the respondents could not recall, revoke, rescind, amend or cancel the earlier Certificate issued to the petitioners, more particularly, when they were duly verified. Mr. Ghulam Qadir Jatoi submitted that the petitioners were admitted on merits and ey were not heard before the issuance of the impugned notification.

10. As against above, learned counsel for the respondents contend that the petitioners had not secured the marks, as shown in the Mark-sheets and the actual marks secured by them were, as have been shown above. They also argued that on the basis of inflated marks and forged documents, they succeeded in getting the admission and that Marks Certificates were verified by the same officers, who in fact, fabricated and inflated the marks for showing favour of the petitioners. It is also urged on behalf of the respondents that the petitioners violated the norms of admission with impunity. They also argued that by the acts of the petitioners, the students who were higher up in the merit list, were deprived from seeking their admission.

11. In support of the petitioners, learned counsel for the petitioners cited, (1) Faiza Malik

1. Chairman, Board of Intermediate and Secondary Education, Lahore and 2 others PLD 1992 SC 324; (2) Mrs. Anisa Rehmar. v. PIAC and others 1994 SCMR 2232; (3) Jawad Habib v. Secretary, Education Department, Government of N.-W.F.P., Peshawar and 6 others 1998 MLD 17; (4) Punjab Engineering College Chandigarh v. Dharminder Kumar Singhal and others 1990 AIEC 75 (SC). . .

12. In case of Faiza Malik, which was also about inflated marks and forgery, it has been observed that if either the examinee or the concerned relation or friend comes forward and take responsibility of having done that which is unfairly placed at the door of the examinee the latter might on, proper statement, a convincing one, be absolved of the responsibility. Ratio I of above case is that whether the examinee could be absolved of the A responsibility regarding inflated marks and forgery. In the case of Anisa Rehman, score of maxim audi alteram partem was considered. In case of Jawad Habib, it was observed that though rule of locus poenitentiae was available to the authorities, yet, an order could not be undone and withdrawn if it had taken legal effect and had created certain rights in favour of an individual. In case of Punjab Engineering College, Chandigarh, the following was observed: "

4. Cases like these in which admissions granted to students in educational institutions are quashed raise a sensitive human issue. It is, unquestionably true that the authorities who are charged with the duty of admitting students to educational institutions must act fairly and objectively. If admissions to these institutions are made on extraneous considerations and the authorities violate the norms set down by the rules and regulations, a sense of resentment and frustration is bound to be generated in the minds of those unfortunate young students who are wrongly or purposefully left out. "

13. Common ground of attack in these matters is that before the issuance of the impugned notification, the petitioners were not heard. It is noted that the Board, in view of its authority under Board's Rule 22 of Volume 3, had issued said notification in respect of concerned 69 candidates to deposit their marks/Pass certificates issued to them and to receive fresh certificates. Nothing was wrong in this notification and it was issued after full-fledged enquiry. It was always within the jurisdiction of the Board to rectify the mistake detected at later stage. The question of affording opportunity of being heard to the petitioners before the enquiry proceedings were initiated did not arise at all as at that time it was not known to authorities that as to who were those candidates, who were involved in committing forgery in Board's record. This notification could only be issued after completion of the enquiry. After issuance of notification, show-cause notices were issued to the petitioners to explain their position, It is significant to note that none of the petitioners seriously contested the findings of Enquiry Report and merely relied upon the technicalities. We have seen the original registers. It is evident that forgery was committed and interpolations were made thereon. As noted by the Enquiry Committee, rubbing, cutting and overwriting are the common features in the Ledgers. Tampering of documents was done with the connivance of the staff of the Board. The petitioners alleged right emanates from forgery, fraud and misrepresentation. It is not a legal right. The legal right is one, as generally understood, which is enforceable before Courts. It is based upon Statute and is invoked for having secured interest.

14. The petitioners by their above act, on the one hand, committed fraud and, on the other, deprived the deserving candidates from seeking admission, who were higher up in the merit list. We are of the view, that a wrong impression has been created, particularly among the students, that after getting admission in the College by fair or foul means, nothing would happen to them. It needs to be dispelled forthwith. Indiscipline in educational institutions shall be curbed. The arguments that most of these petitioners have cleared their First M.B.B.S. Examination and nothing would be achieved, if they, at this stage are deprived from pursuing their studies, is based upon wrong notion, as, on one hand, it. would increase corruption and, on the other, inefficiency. Interest of individual is subservient to the Society.

15. Similar Constitutional Petitions, bearing Nos. 127, 168, 177, 182 of 1998 were filed at Circuit Bench, Larkana and were dismissed. In Petitions Nos. 168, 177 and 182 of 1998, which were decided on 1-2-1999, having taken into consideration the cases reported as (1) Chairman, Board of Mining Examination and Chief Inspector of Mines and another v. Ramjee, AIR 1977 SC 965; (2) Union of India and another v. Tulsiram Patel AIR 1985 SC 1416; (3) R.S. Dass v. Union of India and others, AIR 1987 SC 593; (4) Abdul Qadir and others v. The Settlement Commissioner and others PLD 1991 SC 1029; (5) Rehana Mehmood and 3 others v. Azad Government and 5 others 1997 MLD 2874, the following was observed: "From the perusal of the above case-law it is evident that there is a clear distinction between the two situations, one where the right of such hearing is statutory and the other where such right is claimed on the principles of natural justice. In the former case such right is almost absolute, while in the latter case it is not so and exclusion of such right could be express or implied. Reverting to the facts of the present case it is clear that there was no statutory right subsisting in favour of the petitioners but they have attempted to set up such claim on the principles of natural justice. In the facts and circumstances of this case we find that when only correction in the Marks Ledger has been made by the respondents Nos. 1 to 3 on the basis of genuine and authentic record of each candidate, the petitioners on the pretext of violation of any principle of natural justice cannot claim any such right."

16. Accordingly, we hold that the above petitions are not maintainable and the same are dismissed in limine. Q. M. H. /M. A. K./F-1/K Petitions dismissed.