2007 PLP 1206 (CLC)

RAFIULLAH SULTANI, J.

Through this writ petition, filed under section 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974, a direction is sought to the non-petitioners to accept examination forms of the petitioners without any examination fee. Brief facts of the case are that the petitioners are regular students of B.Ed. and M.Ed. in Raees-ul-Ahrar College Muzaffarabad. It is claimed by them that the Government of Azad Jammu and Kashmir, vide its Notification dated 16-12-2005, remitted fee of the students residing in Earthquake hit Districts; Muzaffarabd, Authmogam, Bagh and Poonch. It is claimed by the petitioners that the university has also adopted the said Notification on 25-3-2006. The case of the petitioners is that AJ&K University has issued a Press release on July 17, 2006, whereby examination fee is demanded along with admission forms for annual examination 2006, which also includes the exams of B.Ed. and M.Ed. This action of the non-petitioners has been challenged for being violative of the Government Notification dated 16-12-2005, and the notification of the university dated 25-3-2006. This writ petition was moved before this Court on 7-8-2006 and, after admitting the same for regular hearing, an order was made on application of interim relief dated 30-8-2006 and direction was issued to Controller Examination of AJ&K University to receive admission forms of the petitioners without any fee or other charges and to conduct their examination in due course of time, however, their result shall not be released till the decision of the petition. On this direction, the non-petitioner No.5 conducted the exam. and now the result is not announced. The learned counsel for the petitioners argued that the Government granted exemption from all kinds of - fee including examination fee for the financial year 2005-2006. The said Notification, according to the learned counsel for the petitioners, was adopted by the AJ&K University on 25-3-2006. He further argued that for the last academic year, AJ&K University issued a press release for conducting annual examination of B.A., B.Ed. and M.Ed. on February

10. The learned counsel referred (Annexure "PE") press release of the university and contended that university has failed to conduct the examination within the year stipulated in the Government Notification dated 16-12-2005 and has asked the petitioners to submit their forms along with admission fee listed in the press release. Press release of the AJ&K University is mala fide, discriminatory and in violation of the Government Notification. He also argued that there was no other remedy for the petitioners, due to this reason they have come into this Court. On the other hand, the learned counsel for the non-petitioners argued that the notification of University dated 17-7-2006 is according to the Government Notification and there is no difference between both the notifications. He also argued that the petitioners have no locus standi to challenge the press release of the university and this writ is not maintainable in the eye of law. He also contended that the petitioners are not affected by the earthquake. They are not belonging to areas, which are hit by the earthquake. According to the learned counsel for the non-petitioners, this writ is writ of mandamus, which is not maintainable. He further contended that the non-petitioners are not bound by the admission/statement of Principal Raees-ul-Ahrar College that petitioners are belonging to earthquake hit areas. He argued that our detailed version has been mentioned in our written statement. He contended that the prayer of the petitioners is not according to law. He also contended that the financial year, according to the Calendar, shall begin from 1st July to 30th June of the following calendar year. Academic year counts the total period during which instruction is required for the purpose of any examination between the commencement of any examination to next i.e. 12 months later. The learned counsel for the non-petitioners also argued that as the financial year has expired on 30th June 2006, therefore, the university is not bound to grant exemption of fee. I have heard the learned counsel for the parties and gone through the record. First point, which I have to meet, is that either the petitioners are belonging to earthquake hit areas or not. This version of the petitioners is admitted by the non-petitioner No.6 in his written statement presented on 16-10-2006 and placed at page 2 of the written statement in these words "In this way all the students are affectees of 8th October Earthquake". In replication, the petitioners have produced documentary evidence wherein they are stated to be affected by the earthquake. There is no rebuttal from the non-petitioners on this point and it is settled law that documentary evidence should prevail. Next objection from the non-petitioners is that this writ is writ of mandamus, which is not maintainable in the eye of law. I do not agree with the learned counsel for the non-petitioners that this writ is writ of mandamus. Writ of mandamus and writ of prohibition are two independent writs to be issued under different circumstances. The writ of prohibition is limited to prevention of exercise of jurisdiction by a body performing judicial or Quasi judicial functions. It has nothing to do with executive acts, which may be controlled by the writ of mandamus. Another point, which needs the consideration of this Court and argued by the 'learned counsel for the non-petitioners that both the Notifications, issued by the Government and the AJ&K University, are same. Here I reproduce the wording of both the Notifications:-- It is clear from the wording of both the notifications that the meaning of above cited notifications are not same. I also want to reproduce the press release of the AJ&K University. It is admitted position that the university has not conducted the exam. in Which the petitioners were to appear within the financial year as is defined in the university calendar, while the university has conducted the exam. of B.A. in the same financial year. It is the fault and mismanagement of the university executive body that they have not conducted the exam. of the petitioners within time. Due to this reason the petitioners cannot be penalized for the act of the university. The other point, which is argued by the learned counsel for the non-petitioners, is that this writ is not maintainable because it is the writ of mandamus, not the writ of prohibition. Iris settled law that a writ of prohibition available under sub-clause (1) of clause (A) of section 44(2) of the AJ&K Interim Constitution lies before completion of an illegal act. As stated in the earlier part of the judgment that this is a writ of prohibition due to this reason objection of the learned counsel for the petitioners is not maintainable. Another point, which I want to discuss, is that the university has received financial grant from Pakistan Government which is on the file of this Court as PR/B

2. Petitioners are students and they are not well off, they are already affected by earthquake and they have lost the lives of their relatives and it is not proper to give them more mental torture. Press release issued by the AJ&K University dated 17-7-2006 is mala fide while the university has also conducted the exam. of the petitioners, due to this reason the version of the university that they shall suffer financial loss in case of acceptance of this writ, is repelled. Now the university has to release the result of the petitioners because they have already received financial grant from Pakistan Government. In view of the reasons listed above, the non-petitioners are prohibited to take the admission fee from the petitioners and they are further directed to announce the result of the petitioners accordingly. Petition accepted. H.B.T./4/AJK H.C. Petition accepted.