2017 PLP 387 (YLRN)

SHAHNAWAZ TARIQ, J.

Through the captioned Constitutional petition, the petitioner Dr. Ihsan Ali has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, and sought the following reliefs:-- a) Writ of Mandamus may be issued to the respondents Nos.1 and 2 and direct them to produce the attendance sheets of the students pertaining to practical examination of "Bio-statics and Computer Application" (ABG-402) held in April, 2010, ire which the petitioner was present and the reporting of petitioner as "absent' in the above paper is illegally and unlawfully reported by the respondents Nos.1 and 2. b) That the respondents Nos.1 and 2 may be further directed to bring the copy of written Test and assignment submitted by the petitioner pertaining to paper ABG-402 (practical) fourth Prof. DVM second semester and after perusing the same the marks secured by the petitioner be adjusted in transcript of marks as Annexure "P" in paper "Biostatics and Computer Application" ABG-402 of batch 2K5-DVM. c) Or on the alternative, if the respondents Nos.1 and 2 are nor in the position to provide the record of attendance sheets, assignment and written test then the respondents may be directed to award to the petitioner average marks and the same may please be directed to add in the transcripts of fourth Prof. DVM second semester for the academic year 2008.

2. Precisely, the relevant facts depicted from the instant petition are that the petitioner was regular registered student of Faculty of Animal Husbandry and Veterinary Sciences of the Sindh Agriculture University, Tando Jam vide registration No.2K5-AV-76 of 2005 up to 2011, while the said academic program of the respondent No.1 was spread over for five years from 2005 to 2009. The petitioner mostly secured A-1 and A grades in major subjects throughout all semester examinations. Due to the hard work, the petitioner was assigned the role of group leader of the students, pertaining to subject ABG-402.

3. It is further averred that the petitioner completed the four years study and appeared in second semester of IV Prof. DVM in the subject of Biostatics and Computer Application (ABG-402) having 3(2-1) credit hours and carried total maximum 60 marks, out of which 40 marks were reserved for theory and 20' marks for practical. The aforesaid subjects contained two theory classes and one practical class and the practical part of the said subject was taught by the respondent No.2. The petitioner secured 34.50 marks in theory out of 40 marks, while respondent No.2 did not report the performance of the petitioner for the practical part of the said subject to the respondent No.3, as such deprived the petitioner from the marks of the practical examination held in the month of April, 2010, for the second Semester of IV year. The respondent No.2 declared the petitioner as absent, while it is matter of record that petitioner along with other four group members participated and signed the attendance sheet of said practical examination according to its schedule.

4. It is also averred that petitioner moved application for the rectification and correction of marks transcripts on 25.05.2010, which was forwarded by the respondent No.2 to respondent No.3 for necessary action as per rules but respondent No.3 extended no consideration to address the grievances of the applicant. Thereafter, the applicant preferred another application on 30.04.2011, for rectification of said error to the Pro-Vice Chancellor and narrated the issue in detail and referred similar nature cases of the students but the University officials did not consider the same.

5. Learned counsel for the petitioner contended that the petitioner was a brilliant student of his faculty and a group leader of the students and secured A- and A grades in majority of subjects. He further submitted that petitioner was residing in hostel of the University but unfortunately he was shown absent in practical examination of the second semester of the IV year of Prof. DVM with mala fide intention on the part of respondents. He further contended that petitioner moved applications to the respondent Nos.2 and 3 for rectification of the said mistake but same were not considered and even the decision taken by respondent No.2 was not transmitted to the petitioner in writing. He further contended that petitioner completed his five years academic session and was awarded silver medal and deprived from gold medal due to the ulterior motives of respondents. He further submitted that respondents may be directed to award 20 marks for the practical examination to the applicant and the corrected marks transcripts be issued.

6. While controverting the contention raised by learned counsel for the petitioner, learned DAG vehemently contended that the petition suffers from laches and being time barred is liable to be dismissed on that score alone. He further contended that the case of the petitioner is pertaining to the year 2010 and all the representations moved by the petitioner were dealt with in accordance with law and the fate of all those proceedings are well in knowledge of the petitioner. He further submitted that the petitioner was subsequently admitted in next examination of the particular session which he passed; as such he is no more student of the University and the matter became past and closed transaction. The petitioner had failed to satisfy that he secured the claimed marks, as such question of omission and depriving the petitioner from practical examination marks does not arise.

7. Learned counsel for the respondents contended that petitioner was neither a group leader of students nor assigned such responsibility and though was present in practical examination, scored Zero. The petitioner moved belated application which was placed before the competent authority and its fate was informed to him. The petitioner against the said order preferred an appeal to Pro-Vice Chancellor which was also regretted, and then on 09.03.2013, again preferred another appeal before the Vice Chancellor which was also rejected.

8. Learned counsel further contended that the case of the petitioner is pertaining to the year 2010 and being satisfied with the disposal of his applications, completed his course, hence he is no more student of the University. He also submitted that after completion of the entire process and with the approval of statutory bodies, the positions, medals and degrees were conferred upon the candidates in a convocation held by the respondents. He further contended that the first position and gold medal was awarded to Mr. Atta ur Rehman vide registration No.2K5-AV-28 scoring the highest marks and the petitioner bearing registration No.2K5-AV-76 was awarded second position and silver medal, scoring the second highest marks at faculty level to which the petitioner had neither agitated against nor objected.

9. Learned counsel further contended that the allegations leveled by the petitioner regarding mistake in the marks transcript are false and having no legal force, as the applications preferred by the petitioner were considered properly and results whereof were timely informed to him. However, after the lapse of three years, he filed present petition and suppressed the material facts as such he has not come forward with clean hands.

10. Learned counsel further submitted that according to the byelaws of the University, the examination record of the students is kept only for one year and after proper tabulation and preparation of final result, no record is available in respect of demands of the petitioner which have been made at a belated stage. The legal notice dated 03.04.2013, was replied on 25.04.2013, by the respondents which was based upon the record as well as bylaws of the University and present petition is hit by laches and waiver.

11. Perusal of the available record and consideration of the arguments advanced by the counsel for the parties emanated that the petitioner was a registered disciple of the respondent University for the Faculty of Animal Husbandry and Veterinary Sciences spread over from 2005 to 2009. In the month of April, 2010, the respondents conducted practical examination of the second semester of the IV Prof. DVM whereby the petitioner was awarded Zero marks for the practical examination while he claimed that he was marked as absent. It has reflected that the petitioner challenged his said result and moved an application dated 25.05.2010, to the respondent No.2 which was placed before the Standing Committee but the same was declined. Thereafter he preferred an appeal vide application dated 30.04.2011, to the Pro-Vice Chancellor which' was regretted. The petitioner then filed the second appeal dated 09.03.2013, before the Vice Chancellor against earlier decisions but same was also dismissed and outcome of all those proceedings were within the knowledge of the petitioner. The petitioner has concealed the factum of filing of second appeal from this Court.

12. It is significant to mention that the respondents re-scheduled the said practical examination in which the petitioner participated and passed. Undeniably, the petitioner has already availed alternate remedy by moving application to the Standing Committee, first appeal to Pro-Vice Chancellor and second appeal to the Vice Chancellor. In the present petition the petitioner again, after the lapse of three years, is demanding the same relief of 20 marks for the practical examination of the second semester of IV year, which he has already claimed.

13. After completion of entire process and with the approval of the statutory bodies, the medals and degrees were conferred upon the candidates in convocation. Admittedly, the petitioner also completed the required codal formalities and participated in convocation held on 03.07.2013, whereby he accepted his second position for the said academic program and received the silver medal and degree without recording any protest. Even after that event, he neither preferred any representation nor raised any kind of protest in this regard which prima facie demonstrated that he had accepted the decisions of the competent authority which even otherwise had already attained finality.

14. It was incumbent upon the petitioner that he should have approached the judicial forum immediately after his alleged marks of the practical examination were declined by the respondents, as according to the byelaws of the University, the record of the students are maintained only for one year after preparation of the final result. Undoubtedly, the petitioner had already exhausted the alternate available legal remedies and when he could not salvage the grievance, has approached this Court at the belated stage. The peculiar circumstances of instant petition are attracted by laches, as the relevant record is not available with respondents. The act of slackness, laxity, lack of adequate persuasion and deliberate negligence to avail the legal remedy by the claimant with unexplained and unreasonable delay attracts the doctrine of laches which is based on the maxim that equity aids the vigilant and not those who slumber on their rights.

15. Likewise, the demeanor of the petitioner apparently established that he appeared in re-scheduled practical examination, participated in convocation held by the respondents and accepted medal and degree without any objection. This strengthened the contention raised by the respondents that the petitioner had waived his right of adjudication. Waiver means an intentional relinquishment either by carelessness or desertion to assert any entitlement, claim or privilege for known existing legal right visible and noticeable from the continuous conduct of a party. In case of Farzand Raza Naqvi v. M. Din, 2004 SCMR 400, The Hon'ble Supreme Court has observed that the laches in simplest form means failure of a person to do something which should have been done by him within a reasonable time and not synonymous with delay alone but it can be worked out to the disadvantage to another person in the matter of his right.

16. After carefully considering all the aspects of the controversy, we do not find any justification for interference with the marks transcripts issued by the respondents pertaining to the practical examination for the second Semester of IV Prof. DVM held in the month April, 2010. Consequently, the instant petition stands dismissed along with pending applications, if any. MH/I-4/Sindh Petition dismissed.