' CH. SHAHID SAEED, J.---This civil revision has been directed against judgment and decree dated 10-2-2007 passed by Ms. Bushra Zaman, learned Additional District Judge, Lahore who dismissed the appeal of the petitioners and maintained the judgment and decree dated 22-5-2006 passed by Mr. Sher Abbas, learned Civil Judge, Lahore whereby the suit of the respondent was decreed.
2. Succinctly, the facts of the case leading to the filing of this civil revision are that the respondent- plaintiff filed a suit for declaration that the orders dated 28-8-2003 and 17-11-2003 are illegal and the petitioners-defendants be directed to issue him a formal matriculation certificate. In the plaint, he alleged that he appeared in the matriculation examination in 1998 and was declared successful with 36 plus marks in practical examination in Chemistry. He applied for rechecking of the Chemistry paper but instead of the same, certain allegations with regard to unfair means were levelled against him. He appeared before the invalidly constituted Disciplinary Committee who debarred the respondent-plaintiff from appearing in the examination. The appeal preferred there against was also dismissed. Thereafter, the petitioner filed a writ petition wherein this Court directed the Chairman, Board of Intermediate and Secondary Education to decide the application of the petitioner. The Chairman after hearing the petitioner dismissed the same. The petitioner again approached the High Court who disposed of the writ petition with the observations that the grievance should be agitated before the civil court. So, the instant suit was filed.
3. The suit was vehemently contested by the petitioner board. The learned trial court after framing of six issues including the relief recorded evidence of the parties and decreed the suit of the respondent vide judgment and decree dated 22-5-2006. The appeal was filed by the petitioner- board which was dismissed vide impugned judgment and decree. Hence this civil revision.
4. Learned counsel for the petitioners inter alma contends that during re-checking, it was found that originally 36 marks were awarded to the respondent-plaintiff in Chemistry Paper but later on, these were enhanced to 70 by erasing the original writing and correcting the answers. The matter was put before the Disciplinary Committee, Appellate Committee as well as before the Chairman, Board of Intermediate and Secondary Education, Lahore who after providing ample opportunities to the respondent-plaintiff held him guilty of the charges of unfair means and accordingly disqualified him for further examination of 1998 and 1999. Learned counsel avers that the suit of the respondent-plaintiff was not maintainable, therefore, the instant civil revision be allowed, the impugned judgments and decrees passed by both the learned courts below be set aside and the suit of the respondent-plaintiff be dismissed.
5. Learned counsel for the respondent-defendant has vehemently opposed this civil revision and fully supported the impugned judgments and decrees. He contends that the petitioner had earlier filed an application under Order VII, Rule 11, C.P.C. Regarding maintainability of' the suit which was rejected by the learned trial court. No mala fide on the part of the respondent-plaintiff could be proved. If there is any erasing, cutting or re-writing occurred, it is due to the mischief of the staff and has no concern, whatsoever, with the respondent-plaintiff. He avers that the civil revision has no force, it be dismissed.
6. Arguments advanced by learned counsel for the parties have been heard and the record available on file perused. I have also seen the original answer book produced by the petitioners- defendants.
7. The crucial issues in this case are Issues Nos.1 and 2. There is no denial that the respondent- plaintiff appeared in the matriculation examination in the year 1998. He was declared successful with 561 marks in total while 36 marks in Chemistry paper and he was accordingly issued result card. Afterwards, the respondent-plaintiff approached the Board for rechecking of his Chemistry Paper, during which, it transpired that marks of the respondent in Chemistry were enhanced from 36 to 70 through mal practices. So, inquiry was held. The Disciplinary and Appellate Committees as well as the Chairman held the respondent responsible for the mal-practices considering him the beneficiary. But in order to prove the unfair means, only DW-1 Faiz Rasool, Assistant was produced by the 'petitioner-board who frankly admitted that he does not know about the case as he has not been a member of the Disciplinary Committee, Appellate Committee or Revision Committee. No other witness from any of the said committees was produced before the court.
8. This Court is conscious that the respondent-plaintiff did not allege any mala fide in the plaint against the petitioners-defendants. The Disciplinary Committee is a statutory body which acts under parental jurisdiction. The original answer book was also presented before this Court where tampering, erasing and re-writing ex facie exists. Unquestionably, increasing marks from 36 to 70 in Chemistry Paper goes in favour of the respondent-plaintiff, so he is beneficiary of the same. Now the respondent-plaintiff claims that his marks are 36 and not 70 which is an afterthought. But at the same time, the future of the respondent-plaintiff who later on has also passed his MBA is at stake. Such illegal activities cannot be undertaken without helping hand inside the board as the answer books once delivered always remain with the board and nobody has access to the same.
The board alleges that the respondent-plaintiff erased the wrong answers with ink remover and then re-wrote the correct answers. If it is so, it means that the access has been granted to the respondent to the answer books by someone inside the department, which is gross negligence of the department. The Secret Branch itself issues secret numbers to each paper, which, without their connivance, no one can have knowledge of his paper and to whom it is dispatched. So, it is crystal clear that some employees of the board were essentially involved in the alleged mal practices. So, the petitioner-board while charge sheeting the respondent-plaintiff was obliged to take proper action against those, particularly the head examiner, who tried to help the respondent-plaintiff in unfair means but the board has failed to do so. It was well in the knowledge of the authorities and also admitted by learned counsel for the petitioners that the head-examiner had been involved in such cases earlier, but no action was taken against him which shows slackness on the part of the petitioners.
9. Furthermore, when there is complaint of mal practices against any candidate, his result is withheld but the position is different with the plaintiff who was not only declared successful but also issued result card. The case of the petitioner is based on circumstantial evidence that the respondent-plaintiff in connivance with the head examiner has got enhanced his marks but the head examiner has denied the allegations. One cannot be penalized merely on presumptions as solid evidence is required to prove the allegation which is missing in the instant case.
10. The Disciplinary Committee acts under parental jurisdiction and was bound to take all precautionary measures while appointing the examiner/head examiners. Especially, when the head examiner was found involved in the mal practices, he must not have been appointed for such important post. On query, learned counsel for the petitioners has miserably failed to convince this Court that the Disciplinary Committee was validly constituted and the quorum was complete.
11. Since the petitioner-board has failed to take proper action against the, delinquents inside the Board which was essential and positive step towards cleaning the Board from black sheep and avoiding such incidents, as far as practicable, in future, the Board had only held responsible the respondent-plaintiff which is not just and fair. Moreover, there are concurrent findings of law and facts by two learned courts below against the petitioners-defendants who have mishandled the matter and remained failed to produce cogent evidence to prove their stance. Only DW-1 Faiz Rasool, Assistant was produced who has shown his total ignorance about the matter. In the circumstances, no interference is called for. Resultantly, civil revision in hand is bereft of any force and is accordingly dismissed.