P L D 1957 (W (PLP)

WAHIDUDDIN, J.

This writ petition has been filed by two students who appeared in Chemistry Paper I of the B.Sc., Examination held by the Karachi University at Karachi on 24th April 1956. The petitioners' claim that they were prepared to complete their papers in the said subject but they were prevented from doing so as the University authorities were unable to provide adequate protection to the students who were prepared to continue with the examination. On 24th April 1956, 118 male students appeared in Chemistry paper I of the B.Sc., Examination in the Islamia College Centre at Karachi. Mr. A. M. Moulvi was the head invigilator. The students appearing at this centre staged a walk-out from the examination hall after 15 minutes of the distribution of the question paper as some of the questions were against the syllabus. It is alleged that the petitioners did not join this walk-out and they continued to stay in the examination hall, but as all the students and the invigilators had left the examination hall, they also left their seats and handed over their paper books : in the case of petitioner No. 1 to Mr. A. M. Moulvi and in the case of petitioner No. 2 to Mr. G. M. Khan in the office of Mr. A. M. Moulvi, the Principal of the Islamia College, where all the invigilators were busy in a conference. The contention raised before us by the petitioners is that as they did not join the walk-out and were prepared to continue with the examination, it was the duty of the University authorities to make adequate arrangements for the completion of their answer papers, and as they failed to do so, they are entitled to be re-examined. It is further alleged that the petitioners made representation to the University authorities but respondent No. 1 failed to place those representations before the Syndicate of the Karachi University. This was against the principles of natural justice and has resulted in grave injustice, and therefore, a writ of mandamus or an appropriate writ should be issued to respon dents either directing them to re-examine the petitioners in Chemistry paper No. 1 of the B Sc., examination, or to declare them as passed ; in the alternative it is prayed that respon dents 1 and 2 be directed to place their representation before the Syndicate for consideration and to finally decide the repre sentations made by them. This petition was hotly contested and in order to appre ciate the contentions raised before us, it will be better to state in brief the facts of the case. The University of Karachi, as stated above, held the B.Sc., examination in April 1956. There were two centres, one for male students and the other for female students. 118 male students appeared in the said examination at the Islamia College Centre while the centre for female students was in the Geography department of the University of Karachi. Mr. A. M. Moulvi was the head invigilator in the male centre and Mr. S. Zahir Hassan was the head invigilator in the female centre. It is admitted by the parties that the petitioners appeared in the said examination on 24th April 1956, in Chemistry Paper I at Islamia College centre. Petitioner No. 1 was seated in the upper storey of the centre whereas petitioner No. 2 was seated in one of the examination halls on the ground floor. Examination commenced at about 9 a.m. Question paper marked was distributed to the examinees and according to the parties after few minutes of the distribution of the paper, there was a great hue and cry in all the examination halls in the above mentioned male centre, and the students staged a walk out. Some of them gave their answer books to the invigilators in the examination hall, and according to the petitioners to the invigilators in the room of the head invigilator and the rest of the students took away their answer books with them. According to the petitioners they did not join the walk-out and continued to stay in the examination hall and left the examination rooms after all the students and the invigilators had left the place. They were prepared to continue with the examination and to finish their papers, but they could not do so as the University authorities were unable to give them adequate protection and opportunity to do so. The petitioners' allegation is that after the invigilators had left, they approach ed Mr. A. M. Moulvi the head invigilator and requested him to allow them to complete the answer books but he expressed his inability to do so and, therefore, they also handed over the paper books to the head invigilator. Petitioner No. 2 handed over his paper book to one Mr. G. M. Khan on or about the same time. The tather of petitioner No. 1 made a representation in writing to respon dent No. 2 explaining the position of his son in the above mentioned matter. It is letter marked annexure F with the petition. No reply was received by petitioner No. 1 or his father. Thereupon the petitioner's father made ail appoint ment with respondent No. 2 on 11th June 1956 and it is alleged that respondent No. 2 asked the father of petitioner No. 1 to send another representation in writing and promised to place it before the Syndicate for its consideration. On 18th June 1956, the father of petitioner No. 2 also sent a representation in writing, and on 22nd June 1956, the father of the petitioner No. l sent further representation in writing. They are annexures H and J. No reply was received of these representations but on 26th July 1956 respondent No- 1 declared the result of B.Sc., examination and the petitioners were declared as unsuc cessful in Chemistry Paper I. Respondent have contested the allegation made by the petitioners. According to them the petitioners also joined the walk-out and the invigilators supervising the examinations in the various rooms in Islamia College centre left the examina tion hall after all the examinees had left the place. According to respondent No. 1, petitioners Nos. 1 and 2 handed over their paper books before staging a walk-out, to the invigilators concerned, and it was denied that the paper books were handed over by the petitioners in the alleged circumstances to the head invigilator and Mr. G. M. Khan in the office of the head invigilator. Respondents have further submitted that the representation sent by petitioner No. 1 along with other papers were placed before the Syndicate, and on 11th May 1956, the Syndicate after taking into consideration all the relevant papers including the representation made by peti tioner No. 1 came to the conclusion by resolution dated 16th May 1956, vide Exh. A/6 that the students who failed to answer the paper books on 24th April 1956, in the above mentioned paper, are not entitled to be re-examined, and if they have failed to secure the necessary marks, they should be declared as failed. It is not denied before us that two further representations were received from the fathers of petitioners Nos. 1 and 2 on 11th and 18th June 1956, but as respondent No. 2, on inquiry from the head invigilator found the facts stated therein to be incorrect, these representations were not placed before the Syndicate for reconsideration of the question of re-examina tion of the students concerned in the examination held in the above mentioned paper on 24th April 1956. It is however denied that the petitioners have any right to call upon the respondents to allow them to be re-examined in the same subject or to declare them as passed. Their right to ask this Court to issue a writ of certiorari or placing their representa tion before the Syndicate for the decision of the question involved in the matter is also challenged. The learned counsel for the petitioners summoned some witnesses on 25th October 1956, under Rule 7, Part II, West Pakistan High Court Rules, and also under Order XIX, Rules 1 and 2 Civil P. C. to cross-examine Mr. A. B. Haleem, Mr. G. M. Khan, Mr: A. M. Moulvi, Mr. Shabih Haider, Muhammad Yaqoob and Syed Ghulam Mustafa Shah 'and Professor Q. M. Fareed to give evidence in support of the petition. On 31st August 1956, after hearing the parties, the bench consisting of our brother Muhammad Bakhsh and. Munshi, JJ. passed the following order: "Heard counsel on either side. Let the witnesses be called in order to be examined". The learned counsel for the petitioners urged during the course of the hearing that they should be allowed to cross examine the above named persons in order to show that the statements made in their affidavits are false and also to further establish that the representation made by the father of petitioner No. 1 on 1st May 1956, was never placed before the Syndicate for consideration. According to him, the Bench hearing this matter had allowed the request of the petitioners and, therefore, we were bound by the said order and there was no other alternative, but to allow the petitioner to cross examine and to examine the above mentioned persons. This contention is without any basis. In our view the order of the Bench on 31st October 1956, summoning the above mentioned persons was only as a precautionary measure so that they may be available for examination if after hearing the parties, this Court would have come to the conclusion that some facts require clarification or further proof. There was/ no final order on this question and we are not bound to allow the petitioners to cross-examine them or to examine them in support of the petitioner's allegation. It is well settled rule of law that where there is a conflict of testimony which cannot be decided with reasonable certainty on affidavits oral evidence should be allowed. But along wit this it is equally well settled that the provisions of Order XIX, Rule 2, Civil P. C. are not be invoked if the deponent of an affidavit is not required in good faith for cross-examination. The discretion lies with the Court. The impression given to us by the learned counsel for the petitioners is that by putting the above-mentioned persons in the witness box, they want to ridicule the Professors and the Vice-Chancellor of the Karachi University. We expressed at the time of hearing, and we repeat it again, that this Court cannot allow the provi sions of Order XIX, Rule 2 and the rules framed by the High Court under Article 170 of the Constitution to be invoked for this purpose. We are satisfied that there was no necessity to examine the above-mentioned persons and the questions involved in this matter are such where it would be sheer waste of time to allow the request made by the learned counsel for the petitioner. The short question involved in this matter is whether the petitioners staged a walk-out along with the other students on 24th April 1956, or they continued to stay in the examina tion hall to complete their examination in the above mentioned paper and left the place after they found that the invigilators had left the hall, and the head invigilator was not prepared to provide them adequate opportunity and protection to finish the examination in the above mentioned subject. The respondents in order to controvert the allegations made by the petitioners, have placed on the record the affidavits of Mr. A. M. Moulvi the head invigilator and the other invigilators, and all of them have with one voice stated, that all the examinees in the three rooms became impatient and came out of the rooms. All of them took away the question papers with themselves. They also took away the answer-books with themselves except seat Nos. 422, 479, 514, 515, 723, 526, 531, 537, 538, 539 and

541. The invigilator brought these answer books to him and informed that the examinees of the seats referred to above had given the answer-books to them before all the examinees including those of these seats walked out of the examination rooms. That after the walk out all the examinees left the premises of the Examination Centre in a body. That thereafter he made enquiries from invigilators who had assembled in his office. He enquired of them about the morning incident and asked them whether they could give him the seat numbers of the ring leaders. The invigilators informed him that the walk out being sudden and spontaneous they could not trace any ring leader. This meeting with the invigilators lasted for about an hour after the walk-out. About three quarters of an hour after the walk out two or three students approached him to allow them to complete their papers. He declined to accept the request because he could not allow those students to appear at the examination after an hour of the commencement of the examination. The examinees had taken away the question papers with themselves and that gave them the opportunity to discuss the question paper among themselves and consult the books. His decision in respect of this matter is final in accordance with item 17 of Exh. A/8, All the examinees without any exception left the examination rooms and the premises of the Examination Centre after the walk-out. No one approached him while he was busy in the meeting with the invigilators. It was after 45 minutes of the walk-out that two or three examinees came to him and asked him to allow them to sit for the examination. He told them that he could not do it as it would be against the rules. He did not know the petitioners and could not say whether they approached him. It is further stated that Mr. Ghulam Muhammad Khan along with other invigilators was sitting with him in the office and no examinees called him at any time after the walk-out. None of the examinees handed over any unfinished answer books to Mr. Ghulam Mohammad Khan after the walk out from the examination rooms. None of the examinees approached him or attempted to approach him immediately after the walk-out. The eleven answer books were brought by the invigilators to his office and given to him immediately after the walk-out which was passed on the Deputy Registrar by him. None of the examinees handed over the answer books personally to him. All the invigilators have supported Ole affidavit filed by Mr. A. M. Moulvi. Mr. Ghulam Mohammad Khan has also filed an affidavit and has denied that petitioner No. 2 approached him and banded over the paper books to him. This statement of the head invigilator and the invigilators is supported by a letter written by Mr. A. M. Moulvi on 24th April 1956. It reads as under :- 24th April 1956. "My dear Najmuddin Sahib, This morning at 9 O'clock the Question Papers were distributed among the students and after 15 minutes a message came to me from the Invigilators that there was trouble in Room No. 1 and

3. When I went there the students all in one voice complained that the paper was above their standard. I advised them to make attempts and give me in writing their complaint. I promised to forward their complaint and assured them that I would do my best to see that their grievances are redressed. They did not listen to me. Then I asked them to wait till I rang up the Registrar. I brought the assurance from the Registrar to them that the needfull would be done. I further told them that the Registrar himself was on his way to the College. They became impatient and within a few minutes the students of all the three rooms came out. Some of them handed over their papers and some of them carried away the Answer Books with themselves. 1 could not control the unruly mob of the students. I told them that I had lost my sympathy with them. The invigilators waited for about an hour in my office and after that I allowed them to go home. I could not trace the ring leaders because the complaint was annium ousand it was not possible for me or for my invigilators to mark a particular student as ring leader. Enclosure : Seat No. 422, 479, 514 515, 723, 526, 531, 537, 538, 539 and

541. Yours sincerely, (Sd.) M. A. Moulvi Principal Islamia College, Karachi. S. M. Najamuddin, Esqr., Deputy Registrar, (Examination Branch) University of Karachi, Karachi." In view of the above statements and letters we have no doubt in our mind that the assertions of the petitioners that they continued to stay in the examination hall after the walk out was staged by the students, is without any foundation. There is no reason to disbelieve the disinterested statements of the above mentioned persons. It appears to us that the petitioners did join the other students in the walk out but after sometime, probably being afraid of their parents, on second thought they decided to approach the head invigilator to allow them to complete the answer books, and the head invigilator had rightly refused to accede to their request, Our finding on this question is that the petitioners were not ready and willing to continue with the examination when the walk out was staged and therefore they were not entitled to any protection. The result is that the very basis of their grievance has no foundation, and in the circumstances the question will be whether the Vice-Chancellor was justified in withholding their representation and not placing them before the Syndicate. The additional factor which weighed with us in not allowing the witnesses called by the petitioners to be examined was that they were summoned to prove the fact that the representation made on 1st May 1956, Exh. F-A/9, was never placed before the Syndicate for consideration. There was no need for it as the respondents failed to establish it. The position taken by them at a later stage that it was placed before the Syndicate is contradicted by para. 13 of the objections dated 11th September 1956. There is other material to support this view. We do not propose to deal with this question any further as in our judgment it is for the Vice Chancellor to decide what papers should be placed before the Syndicate. If on a certain question he is satisfied that the representation made to him are not correct then he will be perfectly justified not to place before the said authority. It has already been shown that the statements of fact made in the letter dated 1st May 1956, were not correct. The letter of Mr, Moulvi dated 24th April 1956 on this matter was very emphatic. In this connection the following remark said letter leaves no doubt: "They became impatient and within a few minutes the students of all the three rooms came out. Some of them handed over their papers and some of them carried away the Answer Books with themselves. I could not control the unruly mob of the students. I told them that I had lost my sympathy with them." The grievance of not placing the said letter before the Syndicate further loses its force as no such request was made therein. There is also no force in the contention that the principles of natural justice have been infringed as the further represent ations Exh. H. A/11 and J were not placed before the Syndicate. The attitude of the Vice Chancellor in this respect is not open to criticism because on the insistence of the petitioners' fathers these representations were forwarded to the Head Invigilator on 28th July 1956 for report. The Head Invigilator however adhered to his earlier report dated 24th April 1956 and further added :- "It was next to impossible for the boys to show their willingness to sit for the Examination when the whole crowd was out. Nobody came to me then and no one could have come. However. I recollect that three quarters of an hour after the walk out two or three students came to me asking me to allow them to sit for the Examination. According to the rules of the University we are permitted to allow the students to sit for the Examination at the most half an hour after the paper is distributed. In this particular case three quarters of an hour after the incident I could not possibly allow them to sit for the examination. This fact I did not mention in my former report because I did not think it of any importance from the University point of view. This is all that I can add." It was, therefore, not at all necessary for respondent No. 2 to place these representations before the Syndicate for con sideration. The case of the petitioners did not stand on any different footing than of the other male students who appear ed on 24th April 1954, in the above mentioned examination. If the case would have been based on different circumstances then the petitioners' grievances might have been of some sub stance. In our opinion respondent No. 2 was perfectly justifi ed in not placing the representations dated 11th June 1954 and 18th June, 1954 before the Syndicate. The contention of the learned counsel for the petitioners that it is the duty of the' Vice Chancellor namely respondent No. 2, to place all the' representations made or received by him for consideration before the Syndicate is not supported by any provision in the Karachi University Act. The Vice-Chancellor of the University is the executive head and it: is for him to decide' what matters should be placed before the Syndicate. It will be interesting to note that petitioner No. 2 directly approached the members of the Syndicate and if they would have at all been impressed, then the matter could have been brought by them before the Syndicate for decision. In any event, we do not consider that in the circumstances of the case the petitioners are entitled to any relief. We therefore dismiss the petition with costs. A, H. Petition dismissed.