2020 PLP 29 (MLD)

MUZAMIL AKHTAR SHABIR, J.

Through this Constitutional petition, the petitioner has called in question order dated 29.12.2018 passed by Discipline Committee of Board of Intermediate and Secondary Education (B1SE), Lahore ("Board") whereby the result of the petitioner for Secondary School Certificate. (Part-I & II), Annual Examination, 2018 has been cancelled and has also called in question order dated 05:03.2019 passed by Appeal Committee of the Board whereby the afore-referred decision has been upheld by dismissing the petitioner's appeal.

2. The learned counsel for petitioner states that after having passed the afore-referred examination and declaration of his result, the Board was not vested with any authority to proceed against the petitioner under 'Chapter 15 rule 9 sub-rules (3) and (8) of the Board Calendar ("Calendar") as the said provision could only be invoked during conduct of examination and that too before the result has been declared, consequently the impugned orders are claimed to be without jurisdiction.

3. On the other hand, the learned counsel for Board has relied upon Chapter 14 rule 14 of the Board Calendar to argue that the Board has the power to quash the result or a candidate at any time even after it has been declared; therefore, no exception can be taken to the impugned orders.

4. Heard, record perused.

5. It is observed that the petitioner appeared in Secondary School Certificate (Part-II), Annual Examination, 2018 under Roll No.222358 and his result was declared as "pass" and he collectively obtained 1031 marks out of 1100 for both parts of the said examination and was awarded Secondary School Certificate. Thereafter, he got admission in Government College University, Lahore but subsequently, on an anonymous complaint received by the Board, the result of the petitioner was cancelled after answer sheets of his physics practical examination were found to have certain discrepancies. Moreover, it was observed that the answer sheets have subsequently been interpolated by deletion of wrong answers and inserting correct answers in collusion with the sub-examiner. A charge sheet under the provisions of Conduct of Examinations provided in Chapter 15 rule 9 sub-rules (3) and (8) of the Calendar was issued to the petitioner requiring him to file reply. The said rules are reproduced below: "

9. If a candidate is found guilty of any of the following offences, he shall be disqualified from passing that examination and from appearing in two immediately following examination: (1) .. (2) .. (3) communicating or attempting to communicate, directly or indirectly, with an examiner with a view to influencing him in the award of marks; (4) .. (5) .. (6) .. (7) .. (8) forging, mutilating, altering, erasing or otherwise tampering with any document connected with an examination or making undue use of such document or abetting in the commission of such offences; (emphasis supplied)

6. The Rule 9 of Chapter 15 provides that the candidate, it found guilty of the offences mentioned therein, shall be disqualified from passing that examination and from appearing in two immediately following examinations. It is observed from the language of the afore-referred rule that said provisions could only be exercised before the result of examination was declared as the candidate is to be declared disqualified from passing the said examination and the same could not be invoked after result had been declared. After declaration of result, the petitioner could although be proceeded against and result could be quashed under Chapter 14 rule 14 of the Calendar, the said provision to proceed against the petitioner was not mentioned in the charge sheet and hence such powers were not actually exercised. The relevant portion of the said Chapter is reproduced below: "

14. The Board shall have the power to quash the result of a candidate at any time after it has been declared: (1) if he has been disqualified for using unfair means in the examination; or (2) if a mistake is found in his result; or (3) if it is found that he was not eligible to appear in the examination; or (4) for any other reason that may be determined by the Board;"

7. The charge sheet which was in the nature of show-cause notice issued to the petitioner requiring him to file reply should have. specifically mentioned the details of allegations and the provisions of law against which the petitioner was required to be proceeded against and in case specific details were not mentioned the authorities proceeding against the petitioner would be proceeding against him under the wrong assumption of said violations. Reliance in this regard is placed on Ishtiaq Ahmad Sheikh and others v. M/s. United Bank Limited and others (PLD 2006 SC 94) and M/s. Atlas Tyres (Pvt.) Ltd, Sheikhupura v. Additional Collector (Adjudication), Collectorate of Central Excise, Lahore and another 2003 PTD 1593. Non-mentioning of Chapter 14 rule 14 in the charge sheet clearly indicates that the Board did not initiate proceedings against the petitioner under the said rule which power was vested in it for cancellation/quashing of result after its declaration, therefore, by passing an order under the said provisions without including the same in the charge sheet would be proceedings on wrong assumptions and not sustainable in the eye of law, as what is not charged through a charge sheet cannot be proved. The time to invoke provision of Chapter 15 Rule 9 sub-rules (3) and (8) had expired when the petitioner's result has been declared. Although grounds referred in the said rule could have been made the grounds for proceedings against the petitioner if show-cause notice under correct provisions of law/rules had been issued by specifically mentioning the same but show-cause notice having not mentioned provision of Chapter 14 rule 14 of the calendar was ambiguous, vague and devoid of power under which the same was issued, consequently it could not be held that the vested powers had properly been exercised. It is settled by now that where a law requires a particular thing to be done in a particular manner; the same could only be done in that manner and not otherwise as the said dictate of law could not be treated as a mere technicality and such an action could not be held to be in compliance with legislative intent and could not sustain in the eye of law. Reliance is placed on Muhammad Hanif Abbasi v. Imran Khan Niazi and others (PLD 2018 SC 189), Shahida Bibi and others v. Habib Bank Limited and others (PLD 2016 SC 995) and Zia-ur-Rehman v. Syed Ahmad Hussain and others (2014 SCMR 1015). Consequently it is held that by not issuing charge sheet by mentioned Chapter 14 rule 14 of the Calendar, and by mentioning provisions under Chapter 15 rule 9 sub-rules (3) and (8) only, for cancellation / quashing of already declared result, the respondents had exercised a jurisdiction not vested in them, therefore, the said exercise of jurisdiction is held to be without lawful authority.

8. The learned counsel for Board has stressed that the provision of Chapter 15 Rule 9 not only barred the candidate from passing the relevant examination but it also provides that he would also be barred from appearing in two subsequent examinations to be held immediately thereafter, therefore, it is argued that this provision can be invoked even after passing the examination but I am not in agreement with the said argument on the ground that unless the order barring the petitioner from passing relevant examination had been passed at the relevant time before declaration of result, the subsequent order barring the petitioner from appearing in two next examinations could not have been passed especially when provision under Chapter 14 rule 14 had not been invoked through charge sheet. Consequently it is held the said provision of Chapter 15 rule 9 of the Calendar has not been rightly invoked after the declaration of result.

9. As the jurisdiction referred in Chapter 15 Rule 9 at this stage was not available to the Board, therefore, the charge sheet in the nature of show-cause notice as well as the proceedings and consequent orders passed by the Disciplinary Committee and the Appeal Committee, having its basis on wrongful assumption jurisdiction, are without jurisdiction; hence the same are declared to have been issued without any lawful authority and of no legal effect. As the matter is being decided on legal ground, therefore, the factual aspect of the same has not been commented upon in this order.

10. For what has been discussed above, the afore-referred order dated 29.12.2018 passed by Discipline Committee and order dated 05.03.2019 passed by Appeal Committee are set aside. The instant petition is allowed accordingly. ZC/A-62/L Petition allowed.