P L D 1954 Lahore 5 (PLP)

KAYANI, J.‑These two second appeals, although arising from different facts, relate to the jurisdiction of the University, and may, therefore, be profitably examined together. In Muhammad Siddiq v. University of the Punjab (R S A No. 58 of 1951) the appellant Muhammad Siddiq took his Matriculation examina tion in 1949 as a private student from Gujranwala. Subse quently to the examination, but before the result was declared, complaints were received by the University that unfair means had been resorted to by the examinees. A general inquiry was, therefore held and examiners were instructed to compare the answer‑books with a view to finding out if they showed evidence of having been copied from each other. The appellant then received from the University a letter that no action had been taken against him and that his result would be declared in due course. His name was subsequently published with those of the successful candidates. Thereafter the University received a complaint relating particularly to the appellant, pointing out that the B paper in English had been answered for him by a different person. Another inquiry was held and the Syndicate having come to the conclusion that the answer‑book in question was not in the appellant's hand‑writing, wrote to him on the 6th of January 1950, that as he had used unfair means, he had been disqualified from sitting in the examination for five years. The suit is for a declaration that the plaintiff has passed the Matriculation examination of 1949, and that the order of his disqualification passed by the University is illegal and ultra vires ; also for a mandatory injunction restraining the University from giving effect to the order of disqualification. It was contended briefly that the result having once been announced and an inquiry having once been held, it was not open to the University to hold another inquiry. This argument has been repelled by the two Courts below. In the other case, Punjab University v. Muhammad Saleem (R S A No. 85 of 1952.), the plaintiff, Muhammad Saleem, sat for the B. Sc. examination (with Honours in Geography) in 1944. was declared first in Honours, joined the M. A. Classes and was offered a scholarship of Rs. 25 p.m. Before, however, he had actually received any part of the scholarship, the Vice --Chancellor received a complaint that his father. Professor Muhammad Nazir of Government College, having been one of the examiners in Geography Honours, had favoured him unduly in the Survey paper. As a result of an inquiry held by the Vice‑Chancellor, his papers were re‑examined and his marks in the Survey paper having been reduced from 16 (out of twenty) to 6, he became second to one Bishambar Nath and thus lost the scholarship. The suit is for the recovery of Rs. 550 as arrear of scholar ship for 22 months, that being the amount due at the time of institution. The issues raised were (1) whether the award of scholarship could be withdrawn, (2) whether the award was in the nature of a gift and was not enforceable, and (3) whether the suit was barred under section 9, C. P. C. The trial Court held that the suit was competent, that although the award was in the nature of a gift, it was enforceable but that as it could be withdrawn by the University, the suit should be dismissed. On this last point, the Senior Civil Judge of Lahore, who heard the appeal, did not agree with the trial Court, and decreed the suit. He also held that the award was not in the gift of the University, but was a compulsory duty assuming the form of a contract. The second appeal is by the University. As the matters involved in these appeals concern the powers of the University and how far they can be interfered with by the Civil Court, it is necessary to have a clear idea of those powers. The University was constituted by the Punjab University Act, 1882, and was to consist of a Chancellor, a Vice-Chancellor and a number of Fellows. This body was called the Senate and was to have the entire management of the University. By section 18, it is the duty of the Provincial Government "to require that the proceedings of the University shall be in conformity with this Act and with the Statutes, Rules and Regulations for the time being in force under the same; and the Provincial Government may exercise all powers necessary for giving effect to its requisitions in this behalf, and may (among other things) annul, by a notification in the Official Gazette, any such proceeding which is not in confor mity with this Act and the said Statute, Rules and Regula tions." In 1904, the Indian Universities Act, "deemed to be part of" the Punjab University Act, came into being. By section 3, its purpose was stated to be to make "provision for the instruction of students, with power to appoint University Professors and Lecturers, . . . . . . . . . . . .to make regulations relating to the residence and conduct of students, and to do all acts, consistent with the Act of Incorporation and this Act, which tend to the promotion of study and research." By section 15, it provided for the constitution of a Syndicate, in which the executive government of the University was to vest. It consists of the Vice‑Chancellor, the Director of Public Instruction and a number of Fellows, to be nominated by the Senate. By section 25, the Senate is empowered to make regulations, "with the sanction of Government," consistent with the two Acts, "to provide for all matters relating to the University." This has resulted in a large body of regulations divided into nine Parts, each part sub‑divided into Chapters, They deal with various subjects including the conduct of examinations (Part III, Chapter V) and courses of study, examinations, scholarships, admission to degrees etc. (Part V). Now, as regards the first case, the case of Muhammad Siddiq, the Syndicate appears to have acted under Regulation 13 of Chapter V in Part III, which is as follows :‑ Regulation 13.‑"Any candidate found guilty of previous arrangement to cheat in the examination, such as smuggling in another answer‑book, impersonation or misconduct of a serious nature, shall be disqualified for five years . . . . . . . ." But if, within a month of receiving the decision of the Syndicate, tile candidate brings to the Vice‑Chancellor's notice new facts which might have influenced ; the Unfair Means Committee in his favour the Vice‑Chancellor may order that such facts be placed before the Committee for a fresh decision, and if there is a difference of opinion in the Committee, the Vice‑Chancellor, or at his instance the Syndicate, shall decide the case finally. (Regulation 18). (The Unfair Means Committee is appointed under Regulation 7 of Chapter III in Part II.) Now so far as this case goes, the argument is that Regula tion 13 relates only to the stage when there is a "candidate" for an examination, and that the candidate ceases to be a candidate when the result is announced. The power of the Syndicate or tile Committee to go into the question of unfair means is not denied, but it is argued that. an inquiry having once been held and the result announced, the decision was not open to review. There is no power of review in the University except as provided by Regulation 18 of this Part, just as there is no power of review in a Court except in specified cases. So far as the argument turns on the word "candidate", I have no hesitation in declaring it unsound. This word has not been defined in the regulations, but it is understood to the present context to mean a person who sits for an examination. If the argument of the learned counsel is carried a step further so as to confine the word to its precise verbal limitations, a person ceases to be a candidate the moment the examination is over. For, a candidate is a candidate for an examination and we are not used to any such expression as a "candidate for the result:" But if Regulation 13 were intended to apply only to a candidate during an examination, how can it apply to a case where an answer‑book is smuggled in after the paper is over ? Again, on the argument as presented, if the second inquiry had taken place before the result was announced, then since) Muhammad Siddiq was still a candidate, Regulation 13 would apply. Nevertheless, the University will have reviewed its previous decision and the argument as to the absence of a power of review would be totally destroyed. Whether such a power exists is a matter of far‑reaching implications, and, so far as necessary will be examined in the sequsel. For the present I shall go back to the second case, the case of Muhammad Saleem, which concerns the award of a scholarship. Scholarships are regulated by Chapter IV of Part V. By Regulation 1, scholarships shall be awarded at the various examinations in the order of the class lists published by the University." Regulation 3 says that "scholarships are given on the express understanding that the holder shall attend a college as a regular student and pursue his studies with industry. If it should appear at any time that the scholar fails to make satis factory progress, or has been guilty of gross misconduct or laziness, or has been irregular in attendance, he shall, after due warning, be reported by the head of the college to the Syndi cate who may diminish or withdraw the scholarship." Under Regulation 4, "scholarships shall be awarded on the results of the examinations." Under rule 5, the number and value of University scholarships to be awarded each year shall be determined by the Syndicate, having regard to the number of Government scholarships awarded the same year. Here the argument took the following turn. The award of Scholarships is regulated by Chapter IV of Part V, and beyond the four corners of Chapter IV there is no jurisdiction. If the scholar attends a college, makes satisfactory progress and is not guilty of misconduct, laziness or irregularity in attendance, his scholarship can neither be diminished nor withdrawn. Once the`` scholarship is awarded, the award is final except where the case falls within Regulation

3. In short there is no power of review. The argument was put in the form of a legal proposition also, calculated to be ingenious. The University made an offer of scholarship and Muhammad Saleem accepted it. He pro mised, in return, to continue his studies and to remain a good boy. There being a promise, the agreement was with consi deration and was therefore, a valid contract. So long as there is no breach of that promise on the part of Muhammad Saleem, the University cannot withdraw the scholarship. I think the argument is fallacious inasmuch as what is being regarded here as a consideration is merely a condition of the award of scholarship. It is awarded, not because Muhammad Saleem says "I promise to continue my studies"‑for there would be thousands who would be ready to make that promise but in consideration of the fact that Muhammad Saleem has secured the first place in the examination. If, therefore, there is at all a contract, the consideration underlying it is the result of Muhammad Saleem, and if he is found to be second on the list, the consideration fails. But this is not a contract. Firstly, a contract is an agree ment which can be enforced by law, and if the University decides not to give any scholarship, how can it be forced to give it? The argument that a gift in contemplation becomes a contract when it goes beyond the stage of contemplation‑for that is what it comes to‑is too unreal to be entertained. Secondly, the University decides to award scholarships before the actual examination, and the offer that is made after the examination has reference only to the previous decision, when it was not known whether Muhammad Saleem or Bishambar Nath would secure the, first position. It happens thus. The University offers as many scholarships as there are subjects in the B. A. examination, subject to a candidate securing the first place on the result of the pass and honours papers combined. That is a general offer, made to anybody who may stand first. After the result, the offer is particularised, not because it was intended to be made to him in particular, but because he in particular has fulfilled the condition. It is, therefore, not the kind of offer that forms the basis of a consideration, for it existed before ever there was a person who could accept it. In character it is not different from the offer of a gold medal once for all, without any condition as to further study. But if a "condition" were the same thing as "consideration", the award of the gold medal would be without consideration and, therefore, not the subject of a contract. Why the award of a sum of money spread over 24 months should imply a contract and the award of a medal or an equivalent amount of money should not, is more than I can explain. In the ultimate result, therefore, the question is whether the result could not be revised or reviewed. There is no express provision for review in such cases, but there is no provision against review either. And if in exercis ing the power of review as though it were an inherent power, the University is not acting contrary to the Acts, Statutes and Regulations constituting it, it is but proper that such power should be recognized. For if it is found, after the declaration of a result, that the award of the highest academic honour has been made to a person who had used unfair means, which means there were no means of detecting at the time, it would indeed be an evil day for the University to find itself impotent to withdraw the honours. By section 3 of the Universities Act, a University has power to do all acts "which tend to the pro motion of study and research", and, on the assumption that unfair means had been used, by the student himself in the one case, by his father in the other, these are eminently cases where the University has acted for the promotion of study and research. In neither case has the actual finding that unfair means were used been questioned before me, notwithstanding the finding to the contrary of the learned Senior Civil Judge in the Honours case, and it is quite obvious that the jurisdiction to decide these matters lies exclusively with the University. By section 25, the Senate can make regulations to provide for all matters relating to the University and since the conduct of examinations and the conduct of students at the time of an examination are two of its fundamental duties, it is hardly a matter calling for the attention of the Civil Court. If the decision is bad, the Vice‑Chancellor can interfere under Regu lation 18 of Chapter V in Part III, though that may not in all cases be an effective interference. Any particular case of injustice, however, may be brought to the notice of the Pro vincial Government, which I have no doubt, will act under section 18 of the Punjab University Act, and annul any proceeding which does not conform with the two Acts or the Regulations. On question of fact, it does not appear to have been the intention to interfere with the decisions of the Syndi cate or the Committee. How the two Courts below in Muhammad Saleem's case felt empowered to question the decision on facts is not clear to me. What Kindersley, V. C. said about the University of London Thomson v. the University of London (1864 L J R XLII 625), may be said with equal emphasis about the Punjab University :‑ Here is a foundation with a Visitor‑a corporation with a Visitor; and that corporation having certain functions to perform within itself, that is, to deal with its Fellows, to deal with its officers, and to deal also with the persons who offer themselves as candidates for the degrees which they are autho rised by the charter to confer, and to the honours which they are authorised to give by their own regulations, the whole matter is a matter for their own exclusive cognizance; and if this Court were once to do what this bill calls upon the Court to do, to interfere in such matters, I can hardly conceive‑I will not say merely a greater infliction upon the Court, but‑a greater mischief to the public than such a course would involve." The contention that a provision having been made in section 18 of the Universities Act for the cancellation of "a degree, diploma, licence, title or mark of honour", only that provision can be employed, overlooks the fact that section 18 provides for the future misconduct of degree‑holders etc., note for the conduct relating back to the very circumstance upon) which the degree is based. That the Civil Court will interfere where the University I exceeds its statutory powers is beyond dispute, but I think the power of scrutinizing cases of this nature, whether before or after the result, inheres in the University and does not involve any excess of jurisdiction. The result is that the appeal against the University fails while that by the University succeeds, both with costs throughout. K. M. A. Order accordingly.