P L D 1988 Supreme Court 638 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑These two petitions filed by the students are directed against the dismissal by the High Court of their Constitutional Petitions against the cancellation of certain examinations by the Peshawar University. The facts and the circumstances as also the question raised before the High Court as narrated in the Impugned Judgment are as follows: ‑‑ The notification is to the following effect:‑‑ "In view of the massive unfair means used in the LL.B.Final and Previous Examinations conducted during 17‑11‑1987 to 5‑12‑1987 and 14‑12‑1987 to 29‑12‑1987 respectively, it has been decided by the competent authority to declare the examinations null and void. Both the Previous as well as Final years candidates of the LL. B. examinations shall be re‑examined. The date of re‑examination would be notified later on." The case set up by the petitioners is that the examinations were peacefully conducted in the presence of Invigilating Staff and no case of cheating, copying or use of unfair means was reported during the said examinations and no candidate was charge‑sheeted for misconduct or indiscipline as enjoined by the rules; that the Vice‑Chancellor of Peshawar University (respondent No.2) without any notice to the petitioners and other students and without following the prescribed procedure cancelled the result of the LL.B. Final and Previous Examinations. The notification to this effect issued by respondent No.3 on 15‑2‑1988 came to their knowledge through newspaper on 16‑2‑1988. The legality of the impugned action is challenged on the grounds that the University authorities had no power to make the order of cancellation of the examinations as a whole and that the petitioners and other students were not given any opportunity to show cause and/or being heard in the matter. Both the writ petitions are vehemently resisted on behalf of the respondents who, in their parawise comments, refuted the allegations that the examinations were conducted peacefully and that no case of cheating, copying or use of unfair means was reported by the Invigilating and Supervisory Staff. It was asserted that the examinees indulged in copying, cheating and use of unfair means on a large scale and paid no heed whatsoever to the warnings administered to them each day. The daily reports made by the Supervisory staff in this respect were placed on the file as Annexures R/1 to R/13 and it was stated that the Examination Hall was also inspected twice by the Action Committee constituted by the Peshawar University Teachers Association comprising senior members of the Faculty including the Principal Law College. Its report (Annexure cR/14) is to the following effect:‑ "It was found that the examination is not conducted under the prescribed rules and regulations of the University of Peshawar. Almost the 160 candidates were found copying from notes books, and photo copied materials. Discussion on the subject‑matter of the examination was open and free. Not to speak of the fear and fright of an examination there was not any respect paid to the presence of the Invigilating staff. There was not even any sense of guilty consciousness. The examination conducted in the said Hall was found a farce. There is no need of such an examination. The teachers and the University Administration may sit together and should devise new measures to improve the fair conduct of University Examinations." The report (Annexure R/1) submitted by the Supervisory staff including the Superintendent; Deputy Superintendent and others is in the following terms:‑ "As soon as the students got the paper, movement started in the Hall,‑ each and every student took out books from under their hips It could be very clearly seen that all sitting in the Hall were simultaneously searching answers in the books they had placed before them. When the invigilation staff started to take away the books from them, every one in the Hall stood up and started creating noises and disturbances. When one book was taken away, they would bring out another one. It was noticed that they had more than one copy of the relevant book. It is regretted to say that we had neither seen, heard or witnessed such a situation before this in an examination Hall. This certainly was not an examination, neither can it be called cheating for it was something far beyond cheating. If this is the state of our examination, it should be stopped at once, because we should not be living in a fools paradise .... In the best interest of the nation, society and the University, it is recommended that this paper be cancelled or all the students who have appeared .in this paper be placed in a compartment in the paper of Mercantile Law." Almost to the same effect are the other daily reports (Annexures 8/2 to R/13) submitted by the superintendent who was to supervise the examinations. In all the reports he had recommended the cancellation of the examinations and pointed out the unfortunate fact of massive copying from books by the examinees. The respondents also took the plea that there was no necessity of serving any show‑cause notice as the petitioners were well aware of the breach of discipline committed by them in the presence of those who were responsible for conducting the examinations. It was asserted that in view of the overwhelming evidence of the use of massive unfair means the matter was placed before the Syndicate in its meeting held on 23‑1‑1988. The Syndicate discussed the matter at great length and unanimously authorised the Vice‑Chancellor to take suitable decision in consultation with the Principal, Law College. The announcement of the decision at some appropriate time was left to the Vice‑Chancellor for administrative and security reasons. The examinations were cancelled by the Vice Chancellor after consulting the Principal, Law College. It was further stated that in the next meeting of the Syndicate held on 25‑2‑198$ only guidance was sought about the conduct of the ensuing examinations and it ;vas wholly incorrect to say that the Syndicate had disapproved their earlier decision. Their stand is that it ;was not a case of an individual student using unfair means or committing act of indiscipline. It was a case of copying, cheating and use of unfair means en masse which in the words of the Action Committee including the Principle, Law College rendered the entire examination as "a farce" and thus, in these circumstances the impugned action was taken with jurisdiction which .vas not open to any exception. The allegations of mala fide action were also denied. The petitioners had not challenged the veracity of the various reports of the Supervisory Staff and others about the conduct of the examinations referred to above by filing any counter -affidavit nor the assertions made in the parawise comments duly supported by an affidavit had been refuted by filing replication or counter‑affidavit. "At the hearing also the learned counsel for the petitioners confined their arguments to the grounds already mentioned." Learned counsel for the petitioners has raised two main contentions: one, that there is no specific provision for the cancellation of the examinations or for that matter to declare them as a whole null and void. And, two, that the petitioners, who claim to be peaceful participants in the examination but in a very small minority, should not have been condemned unheard and the examination vis‑a‑vis them could not have been annulled without proper show‑cause .notice. Reliance has been placed on the case of University of Dacca v. Zakir Ahmad (P L D 1965 S ‑C 90). After hearing the learned counsel at some length, we agree, with the High Court that the University/Vice‑Chancellor had ample power to annul' the examinations in view of the magnitude of the use of unfair means involving large majority of candidates and almost all the varieties of unfair means. Such residuary power, even if, it were conceded that no specific rule dealt with absolutely similar situation, would also be deemed to be inherent in the university. The first argument, accordingly, fails. That being so and the examinations having been validly annulled in their entirety, the question of the individual grievances of each examinee would not arise. In law, there was no examination at all. This is the result of the validity conferred on the annulment. All the examinees had to appear again in the fresh examinations. The case of Zakir Ahmad, therefore, is thus clearly distinguishable. Learned counsel at the end prayed that the petitioners are innocent victims of something for which they were not responsible. That might be so only theoretically. In such like situations the conduct of persons like petitioners is highly relevant. It cannot be ignored in that context that nothing has been pleaded on their behalf that they tried to stop the miscreants; or protested against their actions; or there and then by visible conduct/signs exhibited their hatred, or at least disliked for what others were doing. Had they done so, the authorities concerned might have taken some steps to protect their legitimate interests. This line of approach to the last question raised by the learned counsel is also in line with Islamic morals. Therefore, although we might have sympathies with those of the petitioners, who were genuine examinees and were not at all intersted in unfair means, but in the circumstances of the case, the law and justice both are against them. It cannot be forgotten that both the jurisdictions of the High Court as well as of this Court, invoked by the petitioners, are discretionary. And on that aspect there could not be a worse case, to grant the relief claimed in these petitions. Learned counsel as an absolute last resort informed us that the fresh examinations have commenced today. The petitioners have missed today's paper in some hope that they might get relief from this Court; therefore, some means may be found to save them from the consequences of their failure to appear in today's paper. After considerable exploration, we failed to discover any such measure by which this Court could have helped them in this behalf either. The only possible remedy, which can be visualized in this situation, is that the petitioners should faithfully and sincerely, with full obedience and respect to the authorities concerned, participate in the examination from tomorrow. And after the completion of this part of the exercise, make request for sympathetic treatment regarding the missed paper in other words for the indulgence of the competent authorities within their parental jurisdiction (if possible) within ambit of law. Failing which, in normal course, they should avail of the opportunity to take the examination regarding the missed papers, when offered by the authorities in normal routine‑‑Supplementary or otherwise. With the foregoing observations, these petitions are dismissed. M.B.A./S‑164/S Petitions dismissed.