2005 PLP 177 (YLR)

Mian Abdul Aziz for Petitioner. Raja Abdul Rehman, Assistant A.-G. assisted by Muntazir Mehdi (on Court's call). The petitioner has filed this writ petition with the following prayer:-- "It is, therefore, respectfully prayed that the act of respondent in holding 3rd professional annual examination on 31-8-2004 and thereby depriving eligibility of the petitioner in the said examination and thus wasting of one precious Academic year, is illegal, unwarranted and without lawful authority. The respondents may graciously be ordered to postpone 3rd professional examination till such time the result of supplementary examination is not announced and students who clear supplementary are not provided appropriate time to tender their examination fee for participation in 3rd professional Annual examination."

2. The learned counsel of the petitioner submits that petitioner secured admission in Government College of Education for Science, Township, Lahore, in BS.ED (B.Sc. with B.Ed.) for the Session 2001-2004. The petitioner along with other candidates appeared in 2nd Professional 1st Annual Examination held by respondents Nos.1 to 3 in the year, 2003. The students, who passed the 2nd Professional Examination were promoted to 3rd year of the course. The students, who failed in three subjects at the maximum were to appear in supplementary examination and were allowed to continue their studies in the final 3rd year of the Session. The petitioner appeared in the supplementary examination under the rules and regulations of respondents Nos.1 to

3. Respondents Nos.1 to 3 failed to announce the result of the petitioner. Respondents Nos.1 to 3 have notified schedule for 3rd Professional 1st Annual Examination vide date sheet issued by the respondents on 17th August, 2004 according to which the examination in-question would be held on 31-8-2004. The petitioner submitted application before respondent No.2 with the prayer that examination in question be postponed. Respondent No.2 failed to pass any order on his application. The petitioner is penalized by the inaction of the respondents and on account of inaction of the respondents one year of the petitioner would be wasted as the petitioner would not be in a position to appear in the examination in question unless and until the respondents would declare the result of the petitioner, therefore, action of respondents is without lawful authority.

3. Raja Abdul Rehman, Assistant Advocate-General entered appearance on Court's call, he submits that writ petition is not maintainable.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. It is settled principle of law that principles of C.P.C. are applicable in Constitutional jurisdiction as per law laid down by the Honourable Supreme Court in Hussain Bakhsh v. Settlement Commissioner Rawalpindi and others (PLD 1970 SC 1). The petitioner has filed the Constitutional petition in the representative capacity without fulfilling the requirement prescribed under Order I, rule 8, C.P.C. therefore, Constitutional petition is not maintainable in view of the law laid down by the Division Bench of this Court in Anjuman Araian, Bhera v. Abdul Rashid and 5 others (PLD 1973 Lahore 500). It is also settled principle of law that our Constitution is based on trichotomy and this Court has only jurisdiction to interpret the law and has no jurisdiction to take the role of the policy maker as per law laid down by the Honourable Supreme Court in the following judgments:-- The State v. Zia-ur-Rehman and others (PLD 1973 SC 49) and Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473). It is also settled principle of law that this Court has no jurisdiction to disturb the schedule of examination while exercising power under Article 199 of the Constitution as the matter pertains to the policy, which is prerogative of respondents Nos.1 to 3 as per law laid down by the Honourable Supreme Court in the following C judgments:-- Government of Pakistan v. Zameer Ahmad Khan (PLD 1975 SC 667) and Zameer Ahmad Khan v. Government of Pakistan (1978 SCMR 327). It is also settled principle of law that this Court has no jurisdiction to upset the date sheet of the respondents for one individual, therefore, prayer of the petitioner is not in consonance with the law laid down by the this Court in the following judgments: -- Zaheer Aslam v. Bahauddin Zakariya University, Multan (1995 C CLC 1152) and Rafaqat Javaid and 5 others v. Chairman, Admission Board/ Principal, King Edward Medical College, Lahore and 2 others (1995 CLC 1155). It is alleged by the petitioner that petitioner has filed application before respondent No.2, who has not decided the same till date. It is settled principle of law that it is the duty and obligation of the public functionaries to decide the applications of the citizens specially the students as the respondents have to decide the application of the petitioner keeping in view the parental jurisdiction of the respondents under the hardship regulation as per the law laid down by the Honourable Supreme Court in Board of Intermediate and Secondary Education through Chairman and another v. Muhammad Younis (1998 SCMR 682). It is settled principle of law that no body should be penalized by the inaction of the Public functionaries as the law laid D down by this Court in Ahmed Lateef Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education, Lahore (PLD 1994 Lahore 3). It is duty and obligation of the Public functionaries, as mentioned above, to decide the application of the students without fear, favour and nepotism with reasons within reasonable time as is envisaged by Article 4 of the Constitution read with section 24-A of General Clauses Act as per law laid down by the Honourable Supreme Court in Messrs Airport Support Services v. The Airport Manager (1998 SCMR 2268). In this view of the matter, let a copy of writ petition be sent to Respondent No.2, who is directed to decide the application of the petitioner strictly in accordance with law after providing proper hearing to all the concerned including the petitioner and any other person, who would be aggrieved by his order preferably within three (3) days after receiving the order of this Court, after verifying the record of the respondents, in case the petitioner has already filed an application before Respondent No.2 and he has not decided the same till date. The petitioner is directed to appear before Respondent No.2 in his office at 11-00 a.m. on 26-8-2004, who is directed to decide the application of the petitioner strictly in accordance with law preferably within three days till 28-8-2004 either himself or send the same to competent authority for its decision, who is also directed to decide the same in terms of aforesaid direction of this Court preferably within three days till 28-8-2004. He is further directed to submit his report to the Deputy Registrar (J) of this Court within stipulated period.

5. The learned counsel of the petitioner is directed to hand over copy of the writ petition along with all the annexures to Raja Abdul Rehman, Assistant Advocate-General, who is directed to send the same to respondent No.2 for necessary action and compliance. Office is directed to provide one copy of this order to the aforesaid learned law officer for onward transmission to respondent No.2 for necessary action and compliance. With these observations, the writ petition is disposed of Copy "Dasti" on payment of. usual charges. H.B.T./Y-6/L Order accordingly.