SHAHID KARIM, J.---This constitutional petition brings a challenge to the orders made by the Board of Intermediate and Secondary Education, Lahore ("the Board") on a disciplinary proceedings set in motion against the petitioner . The challenge is to the decision of the Disciplinary Committee dated 29.12.2018, Appeal Committee dated 05.03.2019 and the decision of the Chairman of the Board dated 22.01.2020.
2. The facts may be stated shortly . The case was initiated on an anonymous complaint, filed with the Chairman of the Board. It is indeed strange that the Chairman took notice of the complaint and initiated inquiry on behalf of the petitioner for an examination taken by the petitioner while appearing in Secondary School (Annual) Examination 2018 under Roll No.222358 which he passed with Grade A+ by securing 1031 marks out of 1100 marks. He was awarded secondary school certificate as per result announced on 21.7.2018. On the basis of result he was admitted to G.C. University , Lahore in August, 2018 where he is currently studying. The examination in question took place in the year 2018. The counsel for the petitioner at the outset referred to history of animosity to exist between the petitioner petitioner's father and the respondent No.3 which has been encapsulated in paragraphs 2, 4, 5 and 6 of the petition. For facility , those are reproduced as under:
2. "That some acrimonious facts necessa ry to be stated here are that when on 3.4.2017 the petitioner was sitting in the examination Centre of the Govt. Najaf High School, Gulberg-II, Lahore for his last paper of "Islamic Studies", the respondent No.3 came at the center , and after calling police got arrested and handed over the petitioner's father to it and got FIR No.352/17 registered against him under section 188, P.P.C. with. P.S. Ghalib Market, Lahore; the police hand-cuffed the petitioner's father Iftikhar Ahmad Saqi (a teacher in the same school), took him to police station, and thereafter produced him for obtaining judicial remand at 3.30 p.m., before the Judicial Magistrate, Model Town, Lahore; where after hearing the petitioner's father , the learned Judicial Magistrate discharged him from the case on account of disproof of allegations including cheating to his son, and ordered to release him at once if not required in any other case. The respondent No.3 did not stop here; he with malicious intentions got relayed a news in "channel City '42' in the news hour of 7.00 p.m regarding registration of FIR against the petitioner's father , and got published the gore-said false news on 07.04.2017 in the Daily 'Jang', so that the petitioner's father and his family might be defamed, humiliated and ridiculed in the society and public at large.
The reason for such malicious actions of the respondent No.3 was that 4 teachers including the petitioner's father had some clash with Mr. Mehboob Ahmad, the then Senior Headmaster of the aforementioned School on some issue; the latter surrendered the services of the said 4 teachers to DEO (SE), Lahore on 17.01.2017 and 30.01.2017, but immediately thereafter the services of the said Headmaster Mr. Mehboob Ahmad were withdrawn from the said schools and were placed at the disposal of 'School Education Depar tment'. It was on account of the afore-said clash that Mr. Mehboob Ahmad, the Ex-Senior Headmaster with the active support of Incharge Headmaster Mr. Ansar Jameel started intriguing against the petitioner's father to entangle the latter in some case and humiliate him at the worst level, and they, in pursuance of their nefarious designs, had colluded with respondent No.3, and completed their mischievous plan which resulted in the registration of FIR against the petitioner's father .
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4. That the petitioner's father sent legal notice to the respondent No.3 for payment of damages of Rs.5,00,00,000/- on account of defamation, mental torture etc. and thereafter , filed suit for recovery of Rs.05 Crore as damages against the respondent No.3, and at present, the same is pending adjudication in the court of Mr. Muhammad Sohail Anjum, Ada. District Judge, Lahore . All the facts stated in the plaint need not be incorporated herein as the plaint is appended herewith, and contents whereof are to be treated as an integral part of the instant petition.
5. That through letters Nos. 1851 and 1852 dated 19.04.2017, the petitioner and his father Iftikhar Ahmad Saqi were summoned by Assistant-Controller , Examination (Inter) in an enquiry being conducted against the petitioner at the instance of the respondent No.3. The 'petitioner along with his father Iftikhar Ahmad Saqi appeared on 22.04.2017, and got recorded their statements, and associated in the enquiry being conducted against him and his father . Statements of Resident Inspector Ansar Jamil Superintendent, Deputy Superintendent, and other supervisory staff at Centre were also recorded in the Board. Subsequently , the petitioner and his father had been exonerated from the allegations, and had been declared innocent. It is meet and proper to submit here that when result of Secondary School Exam. Part-I was announced, the petitioner obtained 452 marks out of 495.
6. That in view of the possible revengeful actions of the respondent No.3, the petitioner's father submitted an application on 24.02.2018 to the respondent No.2 to provide all legal, physical and educational protection to the petitioner during the Secondary School Examination Part-II, Annual, 2018. It is pertinent to submit here that the petitioner did not face any unpleasant situation during the examination, and his result was announced on 21.07.2018, and according to the gazette issued by the Board, he obtained 1031 marks out of 1 100."
3. In the examination, a reference to which has been made in the above paragra phs, the petitioner secured 452 marks out of 495 marks. Thereafter in anticipation of the petitioner taking the Secondary School Examination Part II (Annual) 2018, the father of the petitioner made an application to the respondent No.2 for the provision of all possible protection to enable the petition er to take the examination with a peaceful mind. As stated above, the examination concluded without any untoward incident and the petitioner secured 1031 marks out of 1100 marks.
Subsequently , the complaint (anonymous) was filed with the Chairman of the Board on which the inquiry ensued which resulted in the impugned decisions being passed against the petitioner and which have been brought under challenge in the instant petition. A charge sheet was served on the petitioner which has been reproduced in the order of the Appeal Committee and was based on rules 15.9(3) and 15.9(8) of the Calendar of the Board of Intermediate and Secondary Education, Lahore. These rules provide that: "15.9(3) Communicating or attempting to communicate, directly or indirectly , with an examiner with a view to influencing him in the award of marks.
15.9(8) Forging, mutilating, altering, erasing or otherwise tampering with any document connected with an examination or making undue use of such and such offences."
4. To reiterate, the case against the petitioner relates to the practical examination in the subject of physics which carries merely 30 marks. The other allegation also related to another practical examination of 30 marks but this allegation was dropped and was the only charge against the petitioner which remained in the field related to the practical examination of 30 marks.
5. As adumbrated, the petitioner secured 1031 marks out of 1100 marks in seco ndary school examination. The allegation in the complaint was merely with regard to 30 marks and that too in respect of practical examination in the subject of physics. It has been informed by the learned counsel for the petitioner that in the Part-I examination of F.Sc. (subsequent to his admission in the G.C. University , Lahore) the petitioner secured 458 marks out of 510 marks. These credentials are being brought forth simple to show that the petitioner seems to have an exceptional academic record and neither prior to the complaint, subject matter of this petition, nor subsequent thereto has the petitioner been burdened with any alleg ation regarding unfair means. Under the circumstances, it is indeed incredulous on the part of the respondents to have set in motion an inquiry against the petitioner on the basis of an anonymous complaint. Although the allegation of mala fide on the part of the respondents in the initiation and perpetration of proceedings in the compla int by the respondents has been addressed vociferously by the learned counsel for the petitioner , it would be irrational if that allegation was seriously relied upon to upend the decisions made by the three forums of the Board. It would be fantastic to assume that the respondent No.3 was able to sway and influence the Chairman of the Board as well as the Members of the Disciplinary Committee and Appeal Committee in passing the impugned orders against the petitioner . There is no material placed on record which would convince this Court to hold that bad faith was clearly discernible from the conduct of all these officers in their decision making.
6. However , the decisions on the merits of the case leave a lot to be desired. At the outset, the charge sheet against the petitioner may be brought forth: {{URDU TEXT}}
7. The rules which formed the basis of the charge sheet have been explicated above. Rule 15.9(3) relates to an attempt on the part of a candidate to influence an examiner for the award of marks. Suffice to say that no evidence was forthcoming in order to connect the petitioner with this charge. No other material, was produced which would show any tangible act on the part of the petitioner to influence the examiner in awarding him higher marks than the one which were due to him. The examin ation committee in its decision has repeatedly used the words "doubtful and objectionable". These words merely convey a feeling of conjecture and surmises and cannot substitute cogent evidence so as to hold the petitioner culpable under the rules relied upon by the Board. The second charge viz, the alleged difference in the handwriting is not within the contemplation of any of the rules which have been involved.
Further , not a word has been said in the decisions to even advert to the charge. If this charge was so serious and yet has been ignored by all these forums, then the necessary inference is that the other two charges have little or no credibility in them. Although it has been mentioned in the decisions that the petitioner as a candidate admitted the use of ink remover to rectify the mistakes, it does not amount to tampering or mutilating and not even forging within the contemplation of rule 15.9(8 ). The Disciplinary Committee held that "the examiner statement is ridiculous". Suffice to say that no reasonable grounds have been brought forth by the Disciplinary Committee to label the statement of the examiner as ridiculous. It is one thing to say that there was tampering in the answer sheets and another to hold the petitioner liable for forgery and alteration in the answer sheet. The Disciplinary Committee as well as Appeal Committee lost sight of the fact that the answer sheet was marked by the examiner and there is no allegation that the petitioner at any point of time was responsible for the alleged forgery or tampering. The marks were also given by the examiner and in case incorrect marks have been given that too does not saddle the petitioner with the liability .
8. The learned counsel for the petitioner referred to rules 37, 38 and 39 of the Calendar which introduce the concept of a Head Examiner . Rules 38 and 39, which are more pertinent, may be reproduced as under: "38............................
1) In no case shall the Head Examiner hims elf increase or decrease the marks assigned to any paper by a Sub- Examiner .
2) In case of difference of 7 of less marks in evaluation of the candidates' answer -books arising between a Head Examiner and his Sub-Examiner shall change such answer -bookso of the candida tes to Sub-Examiner . The Sub- Examiner shall change the marks already assigned by him according to the instructions of his Head Examiner .
3) In case of a difference of more than 7 marks in evaluation of the candidates' answer books arising between a Head Examiner and his Sub-Examiner , the Chairman shall appoint a Third Examiner or a moderator and the marks assigned by him shall be considered as final. However , this rule shall not apply to the answer books checked in Test Installment.
4) The appointment of Third Examiner or Moderator shall be made amongst at least Headmasters/Headmistresses of High Schools in the case of Secondary School Examination, and Head Examiners or Assistant Professors in the case of Intermediate Examination.
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1) The Head Examiner shall be responsible for submitting the result in his subject in time. He shall also certify that he has re-examined the required percentage of answer -books.
2) When a Head Examiner finds that the work of a Sub-Examiner , whose Test Installment he has already approved with or without modifications, has subsequently fallen short of the required standard, he shall immediately issue a warning to the sub-examiner calling his attention to the standard which has already been approved. If such warning remains ineffective, he shall report the matter to the secrecy officer enclosing all the relevant correspondence and recommend that: a) the head examiner be permitted to send for the sub- examiner for personal consultation, and / or permission for examining a higher percentage (to be specified by the head examiner) of answer books relating to that particular examiner be accorded. b) the controller of examinations shall be authorized to call an examiner from Laho re or from outside to the Board's office and sanction journey for this purpose. The Controller of Examination shall also be authorized to permit a head examiner to call a sub-examiner for personal consultation and permit the examiner concerned to undertake journeys for this purpose."
9. Upon query the learned counsel for the Board was not in a position to state that the answer sheet of the petitioner was cross-checked by the Head Examiner or not. The rules reproduced above do not make a distinction as to whether the role of the Head Examiner is only confined to one and not to the other form of examination and therefore it seems that the Head Examiner ought to have examined the practical answer script of the petitioner as well. This would necessarily obviate any mistake in the marks assigned to any paper by sub-examiner . The rest of the rule refers to the circumstances in which there is a difference of seven or less marks in the evaluation of a candidate's answer book arising between Head Examiner and his sub-examiner . It will be presumed that the answer sheet was examined by the Head Examiner on the basis of this rule. However, he was neither called nor examined in the inquiry proceedings by the Disciplinary Committee. Further the Disciplinary Committee in respect of rule 15.9(3) observed that: "It seems that connivance of both was there and must be certain attempt of communication for influence for full marks".
10. The above observation is conjectural and presumptuous and cannot form the basis for disqualifying a candidate and for giving the punishment which was ultimately done upon the petitioner . In such matter of academic discipline which involves the future careers of students and particularly in view of the holding of the superior courts that the role of the Board is paternalistic in all such matters, it is a matter of grave concern that the petitioner was disqualified on the basis of evidence which was flimsy and implausible. No direct evidence was produced to connect the petitioner with the allegation s in questions let alone any evidence to show that the petitioner at any time communicated directly or indirectly with the examiner with a view to influence him in the award of marks.
11. In the order made by the Chairman Board on a revision filed by the petitioner the following observations deserve a further examination: "...I feel it appropriate to mention here that in questionnaire he was asked two very specific questions why he used ink remover in the answer book of the Practical of Physics paper , whereas the use of it was prohibited under Rules and written instructions of the Board. The candidate replied he did not know about rule / instructions. Why he made cutting, overwriting, erasing in the paper which was also prohibited under rules / instructions of the Board? He replied by cutting, overwriting, erasing he corrected the mistakes.
I have examined the record, reply of the candidate and recommendations of the Revision Committee with utmost care and come to the conclusion that the candidate attempted his practical in the subject of physics with connivance of the examiner to get fill credit in it. It has been proved from the fact that the calculation of Q. No. I of the physics practical is wrong but full credit was given to him by the examiner . It is beyond any doubt that he used unfair means in the examination with the connivance of the practical examiner to get maximum marks in physics practical."
12. It may be noted from the above observations that the allegations down to question No. 1 of the physics practical examination answer sheet which in the opinion of the Chairman Board was wrong but full credit was given to the petitioner by the examiner . On this basis it was held by the Chairman Board that he had no doubt that unfair means were used in the examinations with the connivance of the examiner . Suffice to say that this observation has no legal basis and cannot be culled out from the material brought on record. The other basis for the Chairman Board was the use of ink remover by the petitioner which too does not bring the case of the petitioner within the mischief of rules relied upon by the respondents.
13. The learned counsel for the petitioner relied upon the precedent of Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore and another (PLD 1971 Supreme Court 838) and the following observations in support of his arguments: "...On the plane of mere conjectures, one is left with the feeling that the appella nt may be guilty or he may be innocent, and it is dangerous to convict a man and rob him of his rights when the probabilities are equally balanced either . It is also possibly true that no positive evidence could have been adduced to prove the appellant's guilt in manipulating his result by forging the records and the matter remains in the realm of inferences."
A mistake has obviously been found in the result of the appellant, as stated in clause (2) above, but must his result be quashed on that basis without any proof that this mistake was due to some culpable act on his part. It would be obviously unjust to hold that a successful candidate's result in the examination should be quashed if a mistake has crept into that result on account of an arithmetical error deliberately or accidentally made by the functionaries of the Board. We are inclined to think that before the Board quashed the result of a successful candidate on account of a mistake in that result, it must be shown that the mistake can be laid at the candidate's door on account of some positive action on his part, unless the mistake so detect automatically reduces his success into failure. In the case of the appellant, even by deducting the fictitiously inflated marks from his total he still gets 533 marks and a pass in the second division. We have, therefore, come to the conclusion that on the facts and circumstances of this case, the Board's decision in quashing the appellant's result cannot be upheld as legally correct."
14. The above observations apply , a fortiori, to the present case. No witness was produced to substantiate the allegations and hence the charge was not brought home by positive evidence. That the probabilities were equally balanced either way is apparent from the conclusions of the Disciplinary Committee that: "So, it is established that ispite of cutting , erasing and overwriting, no deduction of marks considered and 100% marks awarded Marking key has not been followed. It seems that connivance of both was there and must be certain attempt of communication for influence for full marks so discipline committee recommends."
15. The learned counsel for the respon dents relied upon the case-law which generally lays down certain rules which are not applicable to the facts and circumstances of the case.
16. In view of the above this petition is allowed and the impugned orders are held to be without lawful authority and of no legal ef fect.