Calendar of Board of Intermediate and Secondary Education Lahore

Petitioner (student) impugned order of Disciplinary Committee of Board of Intermediatory and Secondary Education whereby petitioner was adjudged guilty of tampering / forgery vis-à-vis an examination

Validity

Record revealed that no evidence was forthcoming which connected petitioner with said charges and Disciplinary Committee in its impugned order used words "doubtful and objectionable", which conveyed feeling of conjecture and surmises and same could not substitute for cogent evidence to hold petitioner culpable under applicable rules of Disciplinary Committee

No witness was produced to substantiate allegations and Disciplinary Committee's own observations revealed that probabilities were equally balanced either way

Impugned orders were set aside

Constitutional petition was allowed, accordingly.

Provisions of Chap. 15, R. 9 of Calendar of Board of Intermediate and Secondary Education Lahore, 2018 could only be exercised before declaring the result of examination

Examinee could although be proceeded against after declaration of result and it could be quashed under Chap. 14, R. 14 of Calendar of Board of Intermediate and Secondary Education Lahore, 2018

Board had not mentioned the said provisions in the charge sheet and such powers were not actually exercised

Charge sheet issued to the petitioner requiring him to file reply should have specifically mentioned the details of allegations and the provisions of law against which petitioner was required to be proceeded against

If specific details were not mentioned in the charge sheet/show-cause notice then authorities proceeding against the petitioner would be proceeding against him under wrong assumption of said violations

Non-mentioning of Chap. 14, R. 14 of Calendar of Board of Intermediate and Secondary Education Lahore, 2018 indicated that Education Board had not initiated proceedings against the petitioner under the said Rule

Passing an order under Chap. 14, R. 14 of Calendar of Board of Intermediate and Secondary Education Lahore, 2018 without including the same in the charge sheet would be proceedings on wrong assumption and not sustainable in the eye of law

What was not charged through charge sheet could not be proved

Time to invoke provision of Chap. 15, R. 9 (3) & (8) of Calendar of Board of Intermediate and Secondary Education Lahore, 2018 had expired when petitioner's result had been declared

Show-cause notice having not mentioned provision of Chap. 14, R. 14 of Calendar of Board of Intermediate and Secondary Education Lahore, 2018 was ambiguous, vague and devoid of power under which same was issued

Board by not issuing charge sheet by mentioning Chap. 14, R. 14 of Calendar of Board of Intermediate and Secondary Education Lahore, 2018 for cancellation/quashing of already declared result had exercised a jurisdiction not vested in them, which was without lawful authority

Jurisdiction referred in Chap. 15, R. 9 of Calendar of Board of Intermediate and Secondary Education Lahore, 2018 was not available at such stage to Education Board

Charge sheet in the nature of show-cause notice as well as proceedings and consequent impugned orders having its basis on wrongful assumption of jurisdiction were without jurisdiction and same were declared without lawful authority and of no legal effect

Impugned orders passed by the Board were set aside

Constitutional petition was allowed, in circumstances.

Candidate being dissatisfied with the result sought re-checking of her paper but she was informed that her answer book had been lost

Board gave two options to the candidate either to accept the marks already awarded to her or to re-appear in that paper

Plea raised by candidate .was that keeping in view the marks obtained by her in other papers, she be awarded average marks in the missing paper

Validity

Decision of Board, to offer a choice to candidates to either appear in missing papers or accept the marks awarded was arbitrary and whimsical

Board was custodian of record and in case of loss of answer book of a candidate, responsibility had rested on the Board

No attribution could be made to the candidate for loss occasioned by negligence of the Board

It was fundamental right of candidate to appear in examination, culminating into its correct evaluation and announcement of result

Utmost responsibility of Board was to keep answer books secure and safe, for re-checking

Loss of answer book by sheer negligence of Board should not work adversely to a candidate

Overall ability could be adjudged from the marks obtained in other papers, it was disadvantageous to the candidates and had negated policy of meritocracy and fairness

Board could not punish a candidate for the fault of its own employee

High Court set aside the judgment passed by Single Judge of High Court and directed the Board to issue revised certificate to candidate after grant of average, marks in the paper concerned

Appeal was allowed accordingly.

Non­ issuance of Matriculation Certificate to candidate on the basis of an entry made by a Clerk in the register maintained for "Unfair Means Cases" to the effect that "disqualified for six examinations" without signatures of any Member of Disciplinary Committee and backing of record

Validity

Had there been any charge of impersonation, then same would have been during the course of examination and that too in Examination Hall, but no such occurrence had been reported to the Board and its Controller of Examination by the Examiner

Candidate once having successfully passed Matriculation Examination and result having been declared without any clog in the Result Card and Gazetee could not be disqualified on basis of such entry without backing of original file and proof to the ,effect that student was really involved in impersonation by sending someone else to sit in examination in his place and complaint and decision of unfair means case

Non-issuance of Matriculation Certificate on basis of such entry was not proper.

Examinee was charge-sheeted on the ground that he managed to increase his marks in two papers and was asked to explain as to why action under Regln. No.6.8(IV) of the Calendar be not taken against him

Examinee contested the charge-sheet by filing a reply and by personally explaining his case before the Disciplinary Committee

Disciplinary Committee found the allegation to be correct and while annulling the result of the examinee also disqualified him for further two examinations

Examinee appealed against the decision of the Disciplinary Committee but the. Appeal Committee and High Court in its Constitutional jurisdiction upheld the decision of the Disciplinary Committee

Points raised before the Appeal Committee by the examinee were neither dilated upon nor decided and the Appeal Committee had acted quite arbitrarily inasmuch` as it did not care to go through the record of the case and the Appeal Committee failed to apply its conscious mind to the facts of the case, evidence gathered and instead toed the line ill-founded and unscrupulously drawn by the Disciplinary Committee and had adopted the same reasoning and subscribed thereto mechanically

Validity

Appeal Committee had ignored the core issue as to how the alleged tampering was facilitated or connived by the examinee having no access to the Secrecy Branch; Appeal Committee failed to examine as to whether sufficient incriminating material was available which could justify the imposition of penalty; Appeal Committee had not adverted to the question as to whether the examinee warms in fact a beneficiary because admittedly the marks got so increased by alleged tampering, were excluded in the mark sheet and final result; Appeal Committee had not seen as to how the provisions of Regln. 6.8(IV) of Chap. VI of the Calendar were made applicable and question of involvement of the examinee had been examined in a casual and cursory manner by the revisional forum which was not desirable

Judicial consensus though was that there should be no interference in such domestic Tribunals/Committees in absence of exceptional circumstances but that would not mean that such matters should be decided in an arbitrary and whimsical manner

Orders of the Appeal Committee as well as revisional forum being in violation of the principles as laid down in the Supreme Court judgment in University of Dacca v. Zakir Ahmad PLD 1965 SC 90

Supreme Court accepted the petition and converted the same into appeal and set aside the orders passed by the Appeal Committee and Revisional Committee being without lawful authority with the direction that the appeal preferred by the examinee shall be treated as pending and decided by the Appeal Committee afresh affording proper opportunity of hearing to the examinee by means of a speaking order preferably within a period of two months.

Community participation project introduced by Government of the Punjab, under which private sectors could upgrade existing Government Schools and run them in the afternoon

Secretary, Provincial Education Department directed Board of Intermediate and Secondary Education not to charge affiliated fee from such upgraded schools for a period of five years

Petitioner executed agreement with Government to such effect

Demand of recognition fee/application for by Board from petitioners

Validity

Agreement executed between petitioners and Government was not binding on the Board being a statutory body

Board had framed regulations qua recognition of institutions and had prescribed rate therefore

Such rates were increased by Board from time to time

Government had not prohibited Board from charging endowment fee from petitioners, but had deferred only affiliation fee for a period of five years by Board

Petitioners had not challenged vires of letters on the basis of which Board had issued impugned notice to them

Petitioners could not point out any clause of policy having been violated by respondents

Constitutional petition was not maintain able

High Court disposed of constitutional petition with direction to Secretary, Education Department to look into the matter personally and pass an appropriate order strictly in accordance with law within specified time.

Candidate actually obtained 658/1100 marks in examination, but with connivance of officials of Board succeeded in enhancing marks from 658 to 818 in Result Card

Inquiry for unfair means was conducted and candidate was charge-sheeted for getting marks illegally enhanced

Candidate not only failed to give any reply to charge-sheet, but also failed to appear before Discipline Committee for personal hearing

Discipline Committee after going through material on record, found candidate guilty and disqualified her for three examinations and also quashed her result

Candidate instead of filing departmental appeal against decision of Discipline Committee filed Constitutional Petition before High Court which was dismissed

Validity

Decision of Board against candidate rested not on suspicion, but on material authenticity which was not challenged

Presumption of regularity was attached to all official acts and none of the officials of the Board was inimically disposed towards candidate nor actions taken against her suffered from mala fides

Candidate used a Result Card which was a document connected with examination and she was rightly proceeded against

Having failed to make out a case for interference, petition for leave to appeal was dismissed.

Contention of the petitioner was that High Court had misread Rr.6 & 12 of Calendar of the Board of Intermediate and Secondary Education, Lahore for said Rules were hot attracted in the case and High Court failed to take into consideration the requirements of R.2.5(ii) 1 (f)

Leave to appeal was granted to examine the applicability of R.2.5(ii) 1 (f) read with Rr. 6 & 21, of Chap 2 of the Calendar of the Board of Intermediate and Secondary Education, Lahore.

Petitioner while re-appearing in Intermediate Examination for improvement of her division and marks, was given option either to appear in old course or to appear in new course

Petitioner opted to appear in old course of 1993 and while appearing therein boycotted Urdu Paper ' A' on the ground that same was not of old course but of new course which she had not studied

Petitioner, however, securing 766 marks minus Paper ' A'of Urdu

Board's contention that Urdu Paper A having been changed in 1994, no candidate after Annual 1995 was allowed to appear in old course of 1993 was belied by the fact that in Annual of 1996 said paper was under old course that was in vogue in 1993

Board, however, had expressed its inability to provide any relief to petitioner for there was no provision in the Rules of the Board

High Court directed that petitioner be awarded marks in Urdu Paper ' A' Annual, 1997, equivalent to average marks that petitioner had obtained in other subjects in said examination.

Only proof produced by Board was production of two registers wherein entries under column "decision" relating to specified case had been completely scored out and rewritten-

Such registers were kept by Clerks which were not authenticated by any of the Officers

-Presumption of correctness could not be attached thereto

Petitioner's record showed that he had been having a brilliant academic career previously

Petitioner, in Middle and Matriculation Examinations had received National Talent Award and in Intermediate Examination in First Annual Examination he had secured 685 marks whereas in Second Annual Examination he had obtained 781 marks

Petitioner on basis of t, his academic record was not likely to resort to unfair means of impersonation to pass in specific paper

Heavy burden, thus, lay on Authorities to prove charge of impersonation but no proof thereof was placed before Court

Even ex parte proceedings were not placed before Court

Charge of impersonation having not been proved against petitioner, Authorities were directed to issue requisite certificate to petitioner relating to Intermediate Examination in accordance with result card issued to him earlier.

Controller of Examinations did not file any appeal against decision of Discipline Committee and, in fact, had endorsed report of office whereby, permission was sought for conveying of decision of Discipline Committee to petitioner

Admittedly, no appeal in writing was placed before Appeal Committee which also showed that no such appeal was filed by Controller of Examinations

Orders of Appeal Committee, as well as of Revision Committee were set aside and order of Discipline Committee was restored

Authority was directed to declare petitioner's result at once, so that if required, he might appear in next examination under rules.

Disqualification order was passed against petitioner by respondent debarring him from appearing in two Intermediate Examinations

Validity

Allegation of using unfair means could not be proved against petitioner with particularity

Educational institution was although neither required to act as Criminal Court nor was bound to follow legal or procedural formalities while dealing with student for misconduct and indiscipline and he was not to be treated as ordinary criminal, yet during investigation and inquiries attitude of all concerned should not be of adversaries and should not become antagonistic

Claim of petitioner that he did not indulge into any illegal practice nor did he use any unfair means was not taken into consideration by respondents sympathetically and objectively

Record of the inquiry proceeding was absolutely silent as to whether the members of the Discipline Committee looked into the assertion of the petitioner dispassionately

Impugned order against petitioner was based upon a faulty material, therefore, same was declared to be without lawful authority and of no legal effect

Respondents were directed to declare petitioner's result of Intermediate Examination forthwith.

Chairman's refusal to act under Regln. 10 to relieve hardship caused to candidate for-late submission of Admission Form for reappearing in one paper of Intermediate Examination

Validity

Regulation 10 was inserted in Calendar of the Board to cater for exceptional situation of hardship

Once case of hardship was known to exist, Chairman could pass such orders as he might deem necessary to relieve that hardship

Chairman under Regln. 10 could act contrary to other regulations and rules provided precondition for exercise of power under Regln. 10 was made out

Core question would be whether candidate had suffered hardship or not

Where hardship was caused due to fault of candidate, Chairman would not be inclined to exercise that power in favour of candidate under Regln. 10

Where, however, hardship had occurred on account of factors beyond the control of candidate, and he had made out case for passing of relieving order in terms of Regln. 10, Chairman ought to have exercised his power under the same

View of Chairman for non-exercise of such power was rather narrow and purely administrative although the very nature of power under Regln. 10 would call for parental and benevolent exercise of same

Refusal of Chairman to relieve . petitioner from hardship was declared to be without lawful authority and of no legal effect

Candidate would be taken to have duly taken examination under order of Court and his result would be declared within two days from announcement of judgment.

Petitioner having failed in one subject in Secondary School Examination- Annual, 1994, was admitted in First Year of Higher Secondary School classes provisionally, was allowed to take failed subject in Supplementary Examination, 1994 or First Annual Examination, 1995

Petitioner cleared failed subject in Annual 1995, applied for permission to take Higher Secondary School Examination First Annual 1996 but'she was refused Roll Number on the ground that period of two academic years had not lapsed between passing Secondary School Examination and taking of Higher Secondary School Examination, 1996

Validity

Intention of the rule was not to impose any punishment but that candidate to intermediate examination had undergone instructions for two years after Matriculation Examination

Petitioner had undergone instructions for two years when she was granted provisional admission in her respective institution and took instructions in subjects of intermediate education

Two years'period (in case of petitioner) would thus, commence from passing of Annual, 1994 Examination and not from passing of the date of failed subject

If Board had that intention, it would have to disallow clearance of examination in parts and should insist that the candidate of Matriculation Examination should pass examination in one go and not in parts

Petitioner having failed in one subject and clearing the same in next year, her passing the same would be related back to examination in which she originally appeared

Petitioner was permitted to appear in Intermediate Examination First Annual, 1996.

Petitioners' entitlement to concessional marks as envisaged under R.12, Board of Intermediate and Secondary Education (Lahore) Examination Rules

Effect of deletion of R. 12 through Notification No.2/93 on 4-3-1993

Petitioners' plea for entitlement to concessional marks was that Board of Intermediate and Secondary Education repealed/deleted R.12, Board of Intermediate and Secondary Education (Lahore) Examination Rules, when petitioners before date of deletion viz. 4-3_1993, had already submitted their admission forms for the examination, therefore, repeal thereof, would not affect their right to concessional marks

Even if date of deletion of R. 12, Intermediate and Secondary Education (Lahore) Examination Rules as per claim of Board of Intermediate' and Secondary Education be taken to be 29-12-1992 (actual date of deletion) instead of 4-3-1993 (date of notification), that too was made at the fag-end of Class XII when petitioners were ready to take their final examination of Intermediate

Petitioners had completed their studies for Class XII by the time the rule was deleted

Had petitioners been aware earlier, they would have been very much clear in their minds that concessional marks in question, would not be available to them

Deletion of R. 12, Board of Intermediate and Secondary Education (Lahore) Examination Rules would appear to be harsh as the same had taken away the right accrued to petitioners earlier particularly so when it was notified much after the submission of examination forms just before the commencement of examination

Denial of such concession would also be in conflict with Regulation 2(2), Chapter III, Board of Intermediate and Secondary Education (Lahore) Calendar as it would amount to depriving them of a valuable right accrued to them earlier

Board of Intermediate and Secondary Education was, thus, directed to grant concessional marks as envisaged under R. 12, Board of Intermediate and Secondary Education (Lahore) Examination Rules to petitioners after full verification of their entitlement.

Examinee's case therefore, did not fall under concessional marks provided under R.12 of the Calendar Board of Intermediate and Secondary Education, Lahore

Examinee was, thus, not entitled to concessional marks.

Three consecutive opportunities were provided to a student who had qualified at least in the subjects carrying 600 marks in first attempt

Candidate who fulfilled such condition would be entitled to appear in Supplementary examination

Notification taking away such right would have prospective effect and would not divest a candidate of right already acquired for clearance in failed subjects in appearing in Supplementary examination.

R. 5.13-Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976), Ss. 20 & 21-Answer books-Board, held, duty bound to receive, examine and keep in proper custody answer books of examinees.

Rr. 4 & 5.5-Evaluation of answer books-Case of candidate being not of `zero' mark not covered under Rules-Board departing from. Rule and referring candidate's answer book to expert for remarking-Expert while remarking answer book on complaint of candidate finding that answer book was arbitrarily evaluated .by Sub-Examiner-Admittedly on fair marking candidate would have got through paper in question-Case not referred to Review Committee after assessment as sufficient ground of equity existed in favour of candidate whose fruitful attempt was being wasted Board, held, cannot invoke r. 4 in its entirety and hush up truth and treat candidate as having failed when according to weight of his answer book he was entitled to get through.

R. 6(8)-Annulment of examination result-Powers of BoardResult of examination notified in Gazette-Held, can be annulled by Board if candidate disqualified for using unfair means-[Ghulam Haider's case P L D 1971 Lah. 952 dissented from].

Expression "if he so desires" in r. 17(iv)-pule 17 itself presupposing grant of right of hearing, expression "if he so desires, held further, affords an opportunity of appearance before Appellate Authority and cannot by itself be interpreted to have taken away right of opportunity of appearance at time of hearing of appeal.-[Appeal (civil)].

R. 5.18-Petitioner as result of disciplinary proceedings connected with tampering of result-sheet of 1964 Examination disqualified for six examinations starting from 1964-Contention that result having been declared in 1964 and impugned order being passed in 1972, after more than prescribed period of 4 years, was without lawful authority-Construction placed on rule, held, not applicable to facts of case where on factual plan petitioner never passed any examination-Constitution of Pakistan (1973), Art. 199.

Using unfair means at examination-Board of Intermediate and Secondary Education Lahore, Calendar 1962-65, pp. 166-167, "Rules Relating to Punishment for Use of Unfair Means in Examination of the Board," rr. S (ii), & 8(iv)

Interpretation

Rule 8(iv) independent of r. S(ii) and constitutes distinct and separate offence

For a candidate to be found guilty under r. S(ii) it is not necessary that he must be found to be in physical possession of objectionable material in the examination hall

"Found" in context means and has reference to ultimate finding recorded by disciplinary committee based on evidence as a result of inquiry made by it.

Tribunals like University or Secondary Board of Education albeit free (in domestic inquiry) from fetters and formalities of judicial trial, nevertheless, not entitled to deprive individual of his valuable rights and privileges on mere conjectural grounds-Conjectures and suspicions cannot take place of proof-Student found to have obtained admission in Medical College by submitting false result-sheet-Student actually obtaining 533 marks. and placed in second division, shown in gazetted result to have secured 643 marks and placed in first division-Board presuming that inflation of marks must have been at instance of candidate himself, disqualifying candidate from appearing at 7 examinations including one in which he had already appeared and was declared successful-Held, Board's decision in quashing candidate's result was illegal-Calendar 1962-65 of Intermediate and Secondary Education (Lahore), Chap. v, r. 18.

Roll number of candidate-for examination of 10th Class withdrawn (after examination) on ground of shortage of lectures-Candidate making representation to Chairmen, Bard of Intermediate aid Secondary Education alleging that shortage in her attendance was forged and dons at instance of on: of teachers of school inimically bent towards her-Chairman thereafter calling for attendance register merely to check whether candidate was short of lectures but not probing further into it to find out if there was forgery and tampering with attendance register.-Held, Chairman was competent to hold inquiry and find out whether there was in fact any tampering with attend2nce register; the eligibility of the candidate for examination was to b: determined by Board keeping in view all aspects including allegations by candidate regarding forgery and tampering with attendance register-Board Calendar (Board of Intermediate and Secondary Education, Lahore), Chap. XXIX and Chap. V, r. 7.

Quashment of result of examination-Board of Intermediate and Secondary Education holding a candidate ineligible to appear in examination, quashing his result under provision of a rule contained in Board's Calendar-No show cause notice issued to candidate-Order passed by Board, quashing result of candidate, held, not sustainable in law-Board of Intermediate and Secondary Education, Lahore, Calendar, Chap. II, r. 18(3).