P L D 1988 Peshawar 99 (PLP)

INAYAT ELAHI KHAN, J.‑‑This Constitution petition and the connected petition No.130 of 1988 are instituted by some of the students of the Law College of Peshawar University calling in question the order of the Vice‑Chancellor and the consequent notification dated 15‑2‑1988 whereby the LL.B. Final and Previous Examinations held in the month of November and December, 1987 were cancelled.' 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 5‑12‑1.98.7 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 tile A 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 resisterd 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 R/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 160 candidates were found copying from note books, and photocopied material Discussion on the subject‑matter of the examination was open and free. No‑t 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 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, beard 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 fool's 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 R/2 to R/13) submitted by the Superintendent who was to supervise the examinations. In all the reports 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 25‑2‑1988 only guidance was sought about the conduct of the ensuing examinations and it was 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 cheating and use of unfair means en 'masse which in the words of the Action Committee including the Principal, Law College rendered the entire examination as "a farce" and thus, in these circumstances, the impugned action was taken with jurisdiction which was 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 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.

2. At the hearing also the learned counsel for the petitioners confined their arguments to the grounds already mentioned. It was contended that the University of Peshawar .act, 1974 (Act II of 1974) or the rules and regulations framed thereunder do not contain any provision for cancellation of the examinations as a whole and thus the Vice‑Chancellor having acted in excess of his authority the impugned action was not sustainable in law and, therefore, a direction be issued for withdrawal of the order of cancellation of the examinations and publication of the result thereof. It is next contended that the Vice‑Chancellor and the other respondents had also violated the well established principle of natural justice by failing to give the candidates an opportunity of being heard and to make their defence and on this score as well the impugned order is liable to be struck down. In support of the first contention reliance is placed on Regulations 9 and 18 for conduct of examinations. Regulation 9 provides for punishment to a candidate who is found responsible for reprehensible conduct on the recommendation of the Discipline Committee. Regulation 18 authorises the Vice‑Chancellor, if he is of the opinion that there has been a marked change of standard, to order re‑examination of any Paper or set of Papers by a new Examiner to be appointed by him. The contention is that in view of these Regulations the Vice Chancellor was bound to act only on the recommendations of a Discipline Committee and even otherwise he could only order re‑examination of any Paper or set of Papers by a new Examiner and thus, had no jurisdiction or lawful authority to annul the examinations as a whole. In reply it i:, contended on 'behalf of the respondents that neither of the aforesaid Regulations had any application to the facts involved. It was not a case of discipline or use of unfair means by an individual student or a few' of them but a case, of high indiscipline and use of unfair means en masse by all the candidates in the examination Hall and for taking action in'‑such like situation there is no specific provision excepting section 22 (aa) of the University Act of 1974. Although resort could be had to Regulations' 7 and .8 where under action could be taken against a candidate who failed to part with or is found to have been in possession of any books, papers etc. relating to the subject of examination and a candidate could be barred from passing the examination if he is found having in his possession any book, papers or notes which might be possibly of assistance to him. Section 22(aa) of the University Act authorises the Vice‑Chancellor to regulate, determine and administer all other matters concerning the University and to this end exercise all powers not specifically mentioned in the Act and the Statutes. Since this was a case of detection of unfair means in the examination Hall and not a case where the fact that unfair means were used was discovered after the candidates had left the examination Hall, we consider that) the argument of the learned counsel for the respondents appeals to reason that the impugned action could be justified to have been taken under section 22(aa) of the University Act. Even otherwise we think that the absence of any specific provision would not affect the powers of the Vice‑Chancellor or the Syndicate as a whole to take appropriate action when it is brought to their notice that en masse unfair means had been used in the examination Hall and acts of indiscipline had been committed on a large scale The Syndicate in A its meeting held on 23‑1‑1988 obviously decided that since all the candidates had used unfair means in answering questions the proper action in the circumstances was that the examinations should be cancelled. Although the Vice‑Chancellor was authorised to take suitable decision after consultation with the Principal, Law College. This perhaps was done for security and administrative reasons. Thus, the Syndicate as well as the Vice‑Chancellor had acted within the domain ` of their authority and their action cannot be questioned on any valid ground. The other contention forcefully urged by the learned counsel for the petitioners respecting the rule expressed in the maxim, audi alteram partem, that no man should be condemned 'unheard to consequences resulting from alleged misconduct and without allowing the opportunity of making his defence, in our view, does not seem to be attracted to this case. Support is sought by the learned counsel from a Supreme Court decision, University of Dacca v. 2akir Ahmad (P L D 1965 S C 90) wherein it was laid down that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result' in consequences affecting "the person or property or other right of the parties concerned" and this rule applies even though there may be no positive words in the Statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness. This was a case in which ex post facto investigation into facts .was conducted without associating the student concerned with the inquiry who was individually held responsible for indiscipline. It was not a case where unfair means were adopted or act of indiscipline committed by all students together in the examination Hall. Perhaps this was the reason that the honourable Supreme Court also made a reference to A I R 1952 Cal. 594 wherein it was held that in cases where breaches of discipline are detected by the Invigilators or other officers present in the Examination Hall and candidates concerned are expelled from the Hall or are otherwise dealt with, question of any enquiry or investigation upon notice to the candidates may not arise. But where no case of breach of discipline is actually detected but subsequently upon examination of the answer papers the Examiners come to entertain suspicion about adoption of unfair means by particular candidate or candidates and the Examination Board has to consider such cases and come to a determination as to the nature of the offence committed and has to apportion the penalty which can properly be inflicted upon the delinquents, it is only fit and proper that the party arraigned should have an opportunity to defend himself and to offer an explanation, if any.

3. The learned counsel for the respondents on the other hand placed reliance‑on a, decision from the Indian jurisdiction reported in A I R 1970 S C 1269 which appears to be on all fours with the case in hand and wherein‑ it was observed that:.‑ "This is not a case of any particular individual who is being charged with adoption of unfair means but of the conduct of all the examinees or at least a vast majority of them at a particular centre. If it is not a question of charging any one individually with unfair means but to condemn the examination as ineffective for the purpose it was held, must the Board give an opportunity to all the candidates to represent their cases? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go." It was further held that: We are satisfied that no principle of natural justice was violated in this case. The Board through its Chairman and later itself reached the right conclusion that the examinations at this Centre had been vitiated by practising unfair means on a mass scale and the Board had every right to cancel the examination and order that a fresh examination be held. There was no need to give the examinees an opportunity of contesting this conclusion because the evidence in the case was perfectly plain and transparent."

4. In spite of what has been stated above we are not unmindful of the legal position that every Administrative Tribunal is to act with due regard to the principle of natural justice unless specifically exempted from doing so and the mere fact that the relevant law does not provide for notice etc. would not alter this position. Thus, an order affecting the rights of a party cannot be passed without providing him with an opportunity of showing cause and/or being heard in the matter. But nonetheless it is not an inflexible rule. There may be cases having peculiar circumstances where the application of this rule can be dispensed with such as the case in hand where the examinees were obviously aware of the wrong they had committed and the misconduct on their part was discovered in the examination Hall itself by the Invigilators. Thus, there was no necessity of giving any show‑cause notice or hearing them in defence. It was not a case of holding ex post facto investigation or inquiry which would have necessitated the recording of some evidence.

5. The other argument' on behalf of the petitioners as to why prompt action was not taken by the University authorities after having come to know that unfair means were being used in 'the examination Hall is met by the learned counsel for the respondents by making a statement at the bar that there was an element of fear and the action was postponed with a view to avoid law and order situation which otherwise the examinees were bent upon to create. The Court can also take judicial notice of the conditions prevailing in the University at the relevant time. This aspect of the case is further supported by the fact that the LL.B. (Final) Examination was originally scheduled to commence on 10/11 of 1987 at the N.W.F.P. Agricultural University which had provided a Hall for the purpose. Professor Javed Iqbal of Government Jehanzeb College, Swat was appointed as Superintendent who made seating arrangements etc. for the examinees. On the Examination day the examinees forcibly changed their seats and insisted on attempting the papers in groups. The Superintendent did not agree and thus, the examinees created a serious situation of lawlessness and caused disturbances, destroyed the furniture and made. it impossible to continue with the examination with the result that the examination was postponed. In view of the damage done to the furniture the authorities of the Agricultural University refused to allow the use of their Hall for examination purpose. Consequently, the examination was re‑scheduled and held in the Hall of the Institute of Education and Research from 17‑11‑1987 to 5‑12‑1987. This state of lawlessness and agitation led Professor Javed Iqbal of Swat to refuse to supervise the examinations. Therefore, the Deputy Provost and the Assistant Provost were assigned the duties to conduct the examination alongwith some other members of the staff.. These facts go a long way to support the contention that prompt action in respect of the use of unfair means in the examination Hall was not taken to avoid lawlessness and agitation and this was the reason that the Syndicate in its meeting held on 23‑1‑1988 unanimously authorised the Vice‑Chancellor to take suitable decision in consultation with Principal Law College. The announcement of the decision at some appropriate time was left to the Vice‑Chancellor for administrative and security reasons. Thereafter, the Vice‑Chancellor after consulting the Principal, Law College cancelled the examinations and declared the same as null and void by notification-dated 15‑2‑1988.

6. This background of the case would not justify the exercise of discretionary jurisdiction under the Constitution in favour of the students who had not come to the Court with clean hands. Furthermore, the writ jurisdiction cannot be exercised in aid of injustice or to enable a person to retain his ill‑gotten gains. In Nawab Syed Raunaq Ali v. Chief Settlement Commissioner (P L D 1973 S C 236) it was observed that:‑ "An order in the nature of a writ of certiorari or mandamus is a discretionary order, Its object is to foster justice and right a wrong. Th9'refore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does ‑not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."

7. The above facts and circumstances of the case lead us to the only conclusion that the Syndicate and for that matter the Vice Chancellor of the University had acted in good faith without any malice on their part and also without violating the principle of natural justice. Both the writ petitions having no merit are accordingly dismissed with no order as to costs.

8. The above are the reasons for the short order announced on 21‑5‑1988 whereby this writ petition and the connected Petition No.130 of 1988 were dismissed.. A.A. /625/P Petitions dismissed.