FAZAL SUBHAN, J. Through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks the following relief: - "It is, therefore, most humbly prayed that on acceptance of this writ petition this Honorable Court may please be declared the impugned letter, dated 23.10.2021 and the notices for the deposit of the said amount (fine) dated 30.11.2021 and 03.06.2022 are illegal and void ab initio and without lawful authority and jurisdiction and hence the same may please be struck down. It is further prayed that the respondents may please be directed not to impose the illegal fine/fee on the petitioner."
2. Precisely, petitioner is the Principal of the Khyber Institute of Education (hereinafter called KIE), affiliated with University of Peshawar. That the petitioner through his office letter bearing No.347/KIE dated 23.12.2019 approached the respondent No.4 for conducting of Viva-Voce in the discipline of Master of Education (M.Ed) Session 2019 conveying that the students of Master of Education have completed their Thesis and are ready to complete their Viva-Voce. Names of six external examiners were also provided to the Controller of Examination, University of Peshawar and in response, the Institute received appointment of Thesis and Viva-Voce examiners through letter on 06.01.2020 from respondent No.4 (Copies annexed as annexure-B).
After taking Theory and Viva-Voce Examination of candidates on different dates by the examiners as per their choice, result was declared vide notification No.43 dated 05.06.2020 by the respondents-University (Copies annexed as annexure-E) but the DMCs of candidates, total 37 in numbers, were withheld by the respondents-University and also imposed fine of Rs.4300/- on each candidate on account of late submission of Thesis. That the matter was taken up with the respondent No.4 through application for remission of fine but the same was turned down on 22.07.2020 (Copies of application and letter are annexed as annexure-F&G), while the appeal made to the respondent No.2 also met the same fate vide notice No.4404/Acad-II dated 21.09.2020 (Copy annexed as annexure-I). Having no other remedy, the petitioner filed writ petition No.104- P/2021 which was accepted on 29.06.2021 and the fine imposed on the students of the petitioner's institute was set aside (Copy annexed as annexure-J). The respondents in light of the judgment of this Hon'ble Court decided the case of petitioner through Examination Discipline Committee on 23.10.2021 and waived off the fine of the students, but the Committee imposed the said fine on the petitioner and consequent to the decision a notice was served to the petitioner to deposit the said fine within fortnight else disciplinary action would be initiated against him with further direction to the respondent No.4 neither to entertain examination form of the students nor to declare the awaited result till the deposit of fine amount. Feeling aggrieved, the petitioner approached this Court with the instant writ petition.
3. Comments of respondents Nos.3 and 4 were called which they accordingly furnished, wherein issuance of the desired writ has been opposed.
4. We have heard the learned counsel for the parties and have considered the available record.
5. It transpires from the available record that after the decision in the writ petition No.104-P/2021 (Annexure-G), the matter of imposition of fine was placed before the Examination Discipline Committee (hereinafter called "the Committee") and after deliberations, the Committee made the following recommendations:- "1. That the fine imposed on the students @ Rs.4300/- be waived off and their result be declared forthwith and their DMCs be issued accordingly.
2. That those students who have already deposited the double fee @ Rs. 4300/- may be informed to apply for refund there of as per prescribed procedure.
3. It is established that the delay has been caused on the part of Director Khyber Institute of Education, therefore, fee @ Rs.4300/- per student be charged from the Institute concerned because in ground-C of the Writ Petition the Petitioner himself has stated that how was it possible for the Petitioner's Institute to submit the students thesis before 05.02.2020."
6. The said recommendations, it is argued by learned counsel for the respondents, was made in view of the Notification No.234/AcadIl dated 08.12.2015, vide which amendment was made in Rule 22 of the Rules/Regulations relating to Annual Examination of the University of Peshawar. The said amended Rule 22 is reproduced for the sake of convenience:- "22. Thesis/Report along-with award list shall be submitted to the Controller of Examination within six months from the last day of Theory Examination with following fee structure failing which the result shall be declared as Re-Thesis and the candidate shall not be considered for merit positions: i. Within 04 months: Normal Fee ii. After 04 Months but before 6 Months: Double Fee."
From the bare reading of the said Rule 22, it is clear that the Thesis/report and award list have to be submitted to the Controller of Examination within 6 months from the last day of Theory Examination, with fee as enumerated therein, failing which, "candidate" shall not be considered for merit positions.
7. Record shows that intimation for readiness of the students to appear in Viva-Voce was conveyed by the petitioner through letter dated 23.12.2019, with list of examiners for approval. The respondent No.4 through his letter No.110-111/ACE/Exams, dated 06.01.2020 addressed a letter about appointment for Thesis/Viva-Voce examiners, with the request for submission of result within 3 days to his office. The record of application for additional evidence submitted by respondents, shows that the examiners conducted the Viva-Voce Examination in between 11.01.2020 to 25.01.2020 and as per letter of examiners, they have submitted the result to the Controller of Examination on the same dates. Record shows, that these letters were procured from the examiners later on whereas, the minutes of the meeting of the Committee reveals that the Award list was submitted to the Dealing Assistant of the Examination Section before 05.02.2020, however he failed to provide any acknowledgement receipts after repeated requests of the Committee, which means, that the Committee was not provided any proof that the Award list was submitted before 05.02.2020 to the Controller of Examination and therefore submission of the Award list by the examiners before 05.02.2020 would not be proved, in this view of the matter the earlier writ petition was allowed and matter was referred to the respondents for decision afresh.
8. The Committee, in the light of said decision of this Court considered the case and though it waived off the fine imposed upon the students but concluded that the delay has been occurred on the part of the Director KIE and shifted the penalty on him, however, neither any rule/regulation for imposing such fine on the petitioner is referred/cited nor any other convincing reason was given in arriving the said recommendations. The relevant Rule i.e. 22 reproduced above, provides imposition of penalty upon the candidates on late submission of Thesis/report along with Award list to the Controller of Examination, whereas the said Rule does not provide imposition/shifting of such fine to the petitioner/Institution, especially when there is no acknowledgement receipt from the examiners to this effect.
9. In view of the above, this writ petition is allowed as prayed for and the impugned letter and notices are strike down.