1983 PLP 1333 (CLC)

7. During the hearing of these writ petitions, I called upon the learned Legal Adviser of the Punjab University Ch. Muhammad Farooq, Advocate to assist me in the matter. He accordingly appeared and the Controller of Examinations Ch. Muhammad Yaqub was also present with him. The case unfolded by the learned counsel for the University was, that the petitioners were students who had failed in their practical and viva voce examination in the Anatomy paper. According to the learned counsel, in so far as the practical and viva voce examination is concerned, the petitioners had appear ed but failed despite the fact that there was no disturbances or walk out at such examination. It is accordingly contended that it will be futile to allow them to sit in the written examination in the Anatomy paper in view of the position that if & student failed in the practical and viva voce, he could not be declared to be successful at the examination. However, the learned counsel for the petitioners on the other hand‑ submitted that there was an element of discrimination inasmuch as they were being denied a similar treatment in respect of the same examination by creating categories amongst the students of the 1st Professional. The learned Controller of Examinations Ch. Muhammad Yaqub further explaining the position on behalf of the University stated that the exercise being undertaken by the petitioners was unproductive as they had failed in the practical and oral examination.

8. At this stage, I would like to advert to the contents of the letter dated I3th June, 1982 to precisely understand the implications thereof. The impugned letter dealt with three category of cases. The first category was of those candidates who did not stage a walk out and failed in the subject of Anatomy. They were allowed to appear in the subject of Anatomy paper `A' and `B' and practical in the said examination. The second category was of the candidates whose results had been shown as `Result Later' and `Result Later Fee'. They were not required to appear in the subject of Anatomy due to the reason that they had failed in the practical /theory of subject of Anatomy or they had passed the subject of Anatomy as a whole. The third category however consisted of the candidates who had staged a walk out but had passed in the practical examination. They were allowed to be re‑examined in Papers `A' and `B' only of the subject of Anatomy.

9. The petitioners claim that they fall in the second category, declara tion of whose results have been withheld on the ground that they had failed in the practical examination in the subject of Anatomy. In this background, it was sought to be argued that the action of the respondents was discrimi natory, partial and prejudiced and that there were no basis for differential treatment of people placed in identical situation.

10. During the hearing of the writ petition, University Authorities with their report and parawise comments filed copies of the proceedings of the Board of Studies in Medicine held on 20th May, 1982. It took note of the fact that after its decision at the meeting of 25th April, 1982, where it was decided against re‑examination, the learned Vice‑Chancellor in a note address ed to the Chairman, Board of Studies had indicated that some of the candidates of Lahore Centre had represented to him that they did not want to stage a walk out but no arrangement to conduct their examination was made. This brought in an element of doubt. The learned Vice‑Chancellor also further stated in his note that as a result of the investigation which he personally carried out, at least 40 to 50 candidates indeed did not want to participate in the walk out and were anxious to take the examination but could not do so because of disturbances in the centre. The Vice‑Chancellor accordingly felt that there was genuine hardship involved as far as such candidates were concerned. It was accordingly suggested that Board of Studies may consider the re‑examination in the light of those facts. Similarly, the Principal, Punjab Medical College, Faisalabad, through a letter dated 18th May, 1982 also informed the Board of Studies that a number of candidates of Ist Professional M.B., B.S. Examination personally contacted him and assured him that they did not want to participate in the walk out and were keen to appears in the examination but physically could not do so because of disturbances at the centre. It was further conveyed that the number of such candidates was fairly large and unfortunately there was no criterion for differentiating the innocent ones from the others. The Board thus observed that although a doubt was created and some candidates were innocent but there was available no criterion to differentiate the innocent ones from the others and thus all had to be treated alike. The Board further felt that the question of re‑examination could not be consi dered in the absence of mercy petitions together with unqualified apology and an undertaking of good behaviour from the candidates and that there should be some punishment for those who were involved and encouragement for the candidates of the centres where there were no walk outs.

11. The Board accordingly, subject to the receipt of mercy petitions, apology and undertaking of good behaviour from candidates of the centres where walk outs took place, took the following decisions :‑ (i) The candidates who staged walk outs from Anatomy Papers `A' and 'B' at Faisalabad and Lahore Centres will be re‑examined in both the Anatomy Papers `A and ;B of 1st Professional M.B., B.S. Supplementary Examination of 1980. There will be no Oral and Practical Examination for them as this has been already conducted. (ii) For appointment as House Staff those candidates who staged walk out will lose as many marks as they would have lost for a failure. (iii) The candidate who appeared in the said examination at Fatima Jinnah Medical College and Rawalpindi Medical College Centres where no walk outs took place in the subject of Anatomy and have failed in Anatomy, will be allowed to appear in this re‑examination of the two Anatomy Papers of 1st Professional M.B.,B.S. Supple mentary Examination of 1980. They will be examined in Oral and Practical Examination also.. This was in appreciation of their good conduct. (iv) The result of Ist Professional M.B.,B.S. Supplementary Examination of 1980 held at Fatima Jinnah Medical College and Rawalpindi Medical College may be declared immediately. (v) The date of re‑examination in the subject of Anatomy of Ist Professional M.B.,B.S. Examination of 1980 may be fixed within three weeks after the declaration of the result of examination held at Fatima Jinnah Medical College and Rawalpindi Medical College Centres.

12. The petitioners made an oral request that they be allowed to pray for the quashment of the decision of the Board of Studies in Medicine insofar as it related to deducting the marks of the students "who staged a walk out" at the time of appointment as House Staff. This prayer has been allowed by him.

13. After hearing the learned counsel for both the sides, I have readied the conclusion that the plea of differential treatment or uneven treatment at the hands of the University Authorities meted out to the petitioners when placed in identical situation with other students of 1st Professional M.B.,B.S: Examination does not appear to be well‑based. The rule of uneven handed justice would be attracted to a case where persons are differently treated when placed in identical position. The petitioners cannot succeed in sustain ing this plea for the reason that their case is clearly distinct and different from other category of cases. First, it may be noticed that the petitioners belong to a centre where disturbances did take place. They cannot therefore claim to be in the same position as those students who appeared at the centre where no such disturbances occurred. Next, there are students who appeared in the practical and viva voce of Anatomy paper subsequent to these distur bances in the written examination and passed. The petitioners did appear in the aforeasid practical and viva voce but failed. It cannot therefore be said that the petitioners were in all respects in an identical situation as other students. If A this fundamental condition is not fulfilled, the petitioners to my mind do not appear to be justified in criticising the action of the University Authorities to provide encouragement to those students who appeared at the centres where no disturbances took place.

14. In so far as the petitioners' plea for being granted the permission to appear in the forthcoming Supplementary Examination in the written paper is concerned, it has been rightly pointed out by the University Authorities that no such direction was warranted as it would amount to an exercise in futility. I see no reason or justification to issue such a direction because under the University Rules and Regulations a student who fails in the practical and viva voce examination would not stand benefited even if he qualifies in the written paper. The contention therefore fails.

15. However, there is another material aspect of the case which came to light as a result of the report filed by the University Authorities pertaining to the proceedings of the Board of Studies in Medicine held on 20th May, 1982 on the basis of which in substance the impugned order dated 13th June, 1982 was issued and that is that for appointment as House Staff those candidates who staged walk out will lose as many marks as they would haves lost for a failure. This part of the decision clearly is designed to punish the students who staged the walk out in the papers of Anatomy on 24th March, 1982 and the consequences which they would suffer are of consider able importance to the career of a medical student for appointment as a House Staff.

16. It is difficult to appreciate how the Board of Studies in Medicine of the University of the Punjab could take such a decision after having held that there was no criterion avaliable for differentiating between those who were guilty and those who were innocent and that all had to be treated alike. The requirements of rule of natural justice therefore would fully come into play notwithstanding the fact that the proceedings were being conducted by the teachers in the capacity of their being members of the said Board. There was no inquiry undertaken by the Board for the said purpose and the inquiries which were held by that learned Vice‑Chancellor himself and by the Principal, Punjab Medical College, Faisalabad, both suggested that there were large number of innocent persons without pinpointing those who were guilty. With due respect to the learned members of the Board of Studies in Medicine and the Authorities in the University of the Punjab, it is not possible to sustain this part of the decision. It must be pointed out that suspicion howsoever strong has never been considered to be a substitute for proof. In order to burden a person with a liability for punishment, there has to be an inquiry of whatever nature it may be after allowing an opportunity to the affected person to defend himself. There was no show‑cause notice issued to the affected students, no charges framed and no opportunity granted to vindicate their individual positions. The decision therefore to punish the candidates who staged walk out was designed to punish those whose identity was not even known to the punishers. The proverbial hanging of a person in whose neck the noose fits in cannot be allowed to have its application to tile cases of the petitioners. It is equally not desirable to allow the sword of the domiciles to hang over the head of petitioners till the stage of appoint ment as House Staff for the reasons that whenever power is conferred on a statutory functionary it is implied that it would be exercised within a reasonable time. At any rate, if the intention be to leave the matter till the; time the petitioners are due for house staff jobs, the same would be illusory on account of considerable efflux of time. The learned counsel for the University after some efforts was unable to find justification for this decision.

17. After having given my deep consideration to the whole matter, I would declare the decision of the Board of Studies in Medicine contained in para. 6 (ii) of the minutes of their meeting held on 20th May, 1982 to be without lawful authority and of no legal effect. . The other part of the H decision as contained in the impugned letter/notification dated 13th June, 1982, which is severable from the aforesaid part, is found not to be liable to be so declared. The writ petitions partly succeed as observed above. There shall however be no order as to costs. M. Y. M Petition partly accepted.