Global School and College of Science and Arts (Boys and Girls) vs BISE,

Dr. Khurshid Iabal, J.-

1. This constitutional petition and the connected one (#2916-P/24) have arisen in the background of two incidents: one, on Tuesday, 30/04/2024; and another, on Thursday, 02.05.2024. Both the incidents happened in the examination hall of the Global School and College of Science and Arts (Boys and Girls), situated on Abdara Road in Peshawar city (the petitioner-school). The Board of Intermediate and Secondary Education, Peshawar (its Chairman, Secretary and Controller of Examinations, respondents 1 to 3/the Board) was conducting the Annual-I examination of the Secondary School Certificate (SSC) of classes 9 and 10, from 18/04/2024 till 21/05/2024.

2. The grievance of the petitioner-school is that on Tuesday, 30/04/2024, while its students were sitting for Chemistry paper, the Board deputed illegally to its examination hall one Mr. Fareedullah, a retired employee of the Board, as inspector. The aforesaid inspector, it is added, entered the examination hall, along with his son, who was an unauthorized person, and used "highly objectionable and un-parliamentary language to pressurize the candidates/students [...] and created disturbance [...] by constantly using cellphones." [para. 4 of the petition]. The petitioner- school lodged a complaint to the Board and also provided it a video-recording of the incident captured in a USB.

3. The second incident occurred on Thursday, 02/05/2024, while the class 9 candidates/students of the petitioner-school were solving Physics paper. The petitioner-school states that on the aforesaid day, while the timing of the Physics paper had just commenced, Peshawar's Additional Assistant Commissioner Ms. Misbah Waheed (respondent # 7), entered the examination hall (male & female), along with a police contingent "with threatening attitude, expelled all the students from the [hall] and sealed the same for 50 minutes (from 09.55 am to 10.45 am)." [para 5 of the petition]. One Ms. Shazia, a Deputy Secretary of the Board, reached the examination hall, and settled the issue, telling the respondent # 7 that the sealing of the hall was illegal. The respondent # 7, in what the petitioner-school terms as compelling circumstances, re-assembled the students/candidates into the examination hall at 10.45 am, the incident, unescapably created worries and fears in such a way that some of them left for their homes, due to which they missed the opportunity of solving their paper, whereas, two of them (who were appearing for improvement of their marks) could manage to come back to the hall and resume solving their paper at 12.10 noon. Those two candidates/students had, in fact, gone back to the hall to know the status of their next paper scheduled for 03/05/2024, the next day. But they were asked to resume their paper at 12.21 noon. They could get 85/90 minutes instead of the 180 minutes allocated time for the paper.

4. Key grounds the petitioner-school set up in its petition are: firstly, the respondent # 7 had acted beyond her authority, assuming the role of an examination inspector. Secondly, no law, rules and regulation authorized a magistrate to seal an examination hall, an act for which even the examination halls' superintendents and other supervisory staff are not authorized. Thirdly, the rules/calendar of the Board doesn't confer any such power or authority on magistrates to enter an examination hall or go for body search of the candidates/students. The petitioner-school filed this petition under Article 199 of the Constitution with the following prayer: a. The respondent No.3 may kindly be directed to initiate disciplinary and penal actions against the respondent No.7 for misusing her official position/authority on 02.05.2024, as she entered the Examination Hall alongwith armed police officials with threatening attitude, illegally expelled all the students from the Examination Hall, Sealed the same for 50 minutes, prohibiting them from entering the Hall to solve their question papers and also misbehaved with the principal and staff of the institution. a. The respondents No.1 to 3 may be directed to arrange the re-examination and allow the students of Global School and College of Science and Arts (Boys and Girls) Abdara, Road/University Road, Peshawar (Examination Center No.368) to re-appear in physical paper-1 (9th Class) or to award them average of the marks obtaining in the remaining papers as provided in Chapter-X of the Calander of the BISE, Peshawar. c. Any other relief as deemed appropriate in the circumstances of case not specifically asked for, may also be granted to petitioners.

5. It is pertinent to mention that in addition to the respondent # 7, the petitioner-school also arrayed the Chief Secretary, the Secretary Establishment Department and the Deputy Commissioner, Peshawar, as respondents 4 to 6, respectively. By a Miscellaneous Application #1326, it also sought correction in the prayer column of its petition as to the number of respondent # 4 having been inadvertently written as # 3. The application is allowed.

6. The connected petition was instituted by as many as 123, all candidates/students of class 9 and 10, studying in the petitioner-school. They narrated the same facts of both the incidents, and agitated the same grounds as delineated above. They sought the following prayer against the Board only: a. It is, therefore, most humbly prayed that sealing of the examination hall dated 02.05.2024, may please be declared illegal, misuse of authority and violation of the basic norms of justice. b. The respondents may please be directed to re-conduct Physics paper Parar-1' (class 9th) of the affected students/petitioners or award marks in the paper according to the board rules provided in Chapter X, Para 10 and 14 in order to save their future and academic career. c. Any other relief to which the petitioners are found entitled in the circumstances of the case and not specifically asked for may also be granted.

7. The Board and the respondents # 5 to 7 submitted their separate comments. The Board denied the contention of the petitioner-school as regards the role of Inspector Faridullah, stating that on his visit, the administration of the petitioner-school misbehaved with him and compelled him to allow unfair means in the examination. The Board contended that Mr. Faridullah reported the issue to its officials. The stance of the Board as regards the role of the respondents # 7 was that while it sought the support of that respondent in writing, but the respondent # 7 didn't report that she had sealed the examination. The respondents 4 to 7, in their comments, admitted the visit, stating: The examination center [of the petitioner-school] was duly visited/inspected in order to monitor the fair conduct of examinations in light of powers conferred [on] the District Administration under Section 18 read with Section 13 of the Khyber Pakhtunkhwa Civil Administration (Public Service Delivery & Good Governance) Act, 2020 (the Act 2020/emphasis added) [preliminary objections # 1].

Despite the above referred admission, they didn't file a copy of the report of the visit of the respondent # 7. Ironically, a copy of that report was annexed by the Board with its comments, copies of which were forwarded to its Chairman and Secretary. The Board, however, didn't come up with specific comment on the report. For the sake of quick reference, we reproduce the report below: The Deputy Commissioner, Peshawar Address: Gate No.:3, Opposite Pearl Continental Hotel Khyber Road, Peshawar Tel:091-9212301-02, Fax:091-9212303 No.183/AAG(G)/READER Dated:02/05/2024 To The Deputy Commissioner, Peshawar.

Subject: REPORT REGARDING INSPECTION OF EXAMINATION HALL GLOBAL DEGREE COLLEGE UNIVERSITY ROAD, PESHAWAR.

Please refer to the subject noted above and to submit that as per your kind direction, the undersigned visited Global Degree College, University Road Peshawar regarding inspection of prevailing SSC Examination on 2nd May, 2024 wherein the following irregularities were observed.

1. CCTV Cameras were found switched off in the beginning of Examination.

2. Examination conducting invigilation team had a linenit attitude towards their duty.

3. MCQs [of] (Part-I) paper had 15 mins time but no observance of schedule.

4. Cameras were made functional by undersigned during her presence.

5. During round it was observed that a female invigilator thrown the pocket guide to the back of Hall, as soon as she saw that undersigned is coming towards the Hall.

6. Upon, rewinding the camera recording it was seen, that a student in presence of same invigilator was running within the hall and went towards her school bag placed inside the hall, grabbed a pocket guide and sit back on the seat. But when invigilator had seen the undersigned is coming towards the same hall she intimated her and student thrown the guide towards her, which she thrown to back of the hall.

7. Upon this negligence when she was asked she remained silent.

8. Superintendent and invigilators both were told to make UFM on the students but no action was taken.

9. Similarly, in make hall a lot of cheating material was confiscated but none of the invigilator made any UFM.

10. Upon such strictness, students left the examination halls and started misbehaving and went on road and blocked the road.

11. On such nuisance non[e] among the school / administration took any action.

12. However, on road blockage, the issue was reconciled in presence of Deputy Secretary Mst.

Shazia Atta, students were called upon and examination was restarted.

13. Students were given again extra time i.e. 10:17 am to 1:30 pm.

14. Till such time, undersigned monitored the whole exam and 04 students caught using pocket guides for cheating but invigilators took no action.

15. Point to ponder, neither in start no later, body search of students was made.

Recommendations: Keeping in view of the above narrated facts, it is therefore, requested to please take proper action against those who paved the ways for students using unfair means during examination. Details of invigilation team are as under: [...] Sd/- (ENGR. MISBAH WAHEED)

Addl: Assistant Commissioner (G/SMT), Peshawar

8. During the course of arguments, we heard Mr. Arif Khan, the Controller of examinations of the Board (respondent #3). He expressed his concern regarding the trouble the petitioner-students faced in the event of the visit of the respondent #7. We asked him about a way out to help the petitioners-students as regards their examination in the relevant subject during which the controversy arose. He informed us that they have two options: firstly, they may sit again in the examination for the paper of that subject. Secondly, they may be awarded average marks they obtain in other similar subject carrying the same total marks. These two options are provided in paragraph 10 of the 1995 Calendar of the Board. For the ease of reference, it is reproduced below:

10. If a candidate's paper is lost, the candidate may be given the option either to re-appear in the missing paper or to accept the average of the marks obtained in the remaining papers. If the candidates opt to reappear in the missing paper, the Controller of Examination shall arrange the re-examination and fix the date and time in either case, the marks obtained by the candidate or his average marks in the missing paper, as the case may be, shall be duly entered in the result sheet and his result declared accordingly.

9. As the future of the petitioners-students was at stake, therefore, the worthy Controller of Examinations of the BISE, Peshawar (respondent #3) was summoned. He came up with a proposition that the Board was left with two options: the students could either re-appear in the missing paper or accept the average of the marks they obtained in the remaining papers. When confronted, the learned counsel for the petitioners-students requested some time to obtain the consent of his clients, and, in the case of the latter option, to seek affirmation from respondent #3.

After some time, the learned counsel came to the rostrum and opted for the second option. When asked, the respondent #3 stated at the bar that the Board would redress the grievance of the petitioners-students in the manner they sought before the Court. In this view of the matter, we do not deem it appropriate to delve into the merits of the connected writ petition, as the grievance of the petitioners-students has been impliedly and amicably redressed, though with their mutual understanding. Hence, the connected writ petition is disposed of accordingly.

10. Pursuant to the above acceptance of the second option, the learned counsel for the petitioner- school also didn't press relief 'B' sought from the Board. He, however, strenuously pressed for his relief against the respondents 5 to 7. He argued that the respondent # 7 has no power to interfere with the conduct of the examination in question, especially by entering and sealing the examination hall. To support his argument, he referred to chapter X of the 1995 Calendar of the Board. On the other hand, Mr. Muhammad Riaz Painda Khel, the learned AAG, argued that the respondent # 7 has not acted without legal authority. The Act 2020, confers legal authority on her, he maintained. We have perused the record made available before us.

11. As regards the legal authority of the respondent # 7, two points appear to be in order: firstly, the law--the 1995 Calendar of the Board--governing the conduct of examinations by the Board coupled with the legal status of the Board under the KP Boards of Intermediate and Secondary Education, Act 1990 (KP Act V of 1990/the Board Act). Secondly, the Act 2020, especially its Sections 13 and 18, under which the respondent # 7 claimed her authority. Starting with the first point, Chapters X and XI of the 1995 Calendar are clear on examinations and how to conduct examinations. There is no provision authorizing the officials from the executive limb of the government, including, most notably, the respondent # 7, to interfere with the conduct of examinations. The stance of the Board regarding her impugned conduct is clear inasmuch as she didn't inform the Board about her entry to the examination hall and its sealing. Rather, as already noted above, the Controller of examinations (respondent # 3) expressed his concern about her conduct. The Board, however, informed us that through various letters, it did approach to the Inspector General of Police, the District Police Officers and the Deputy Commissioners of various districts, for their support. We have perused those letters. In the letter dated 02/04/2024, addressed to the Inspector General of Police, the Secretary (respondent # 2) requested for issuance of direction to "the concerned quarters to beef up security around examination centers (list of centers attached) for smooth conduct of examinations." The relevant para of the letter dated 02/04/2024, the Board's Secretary addressed to the Deputy Commissioner reads as under: BISE Peshawar is obliged for the gracious support during annual examination 2024. Once again request for support of the honourable Deputy Commissioner as almost 99070 students will [...] appear within the jurisdiction of District Peshawar in the subject examination. Therefore, it is requested that concerned and Police Station may be informed to remain alert please.

The word 'support' means help in maintaining law and order outside the examination halls. It was for this reason that a request was made for engaging the police as well in providing such support.

It doesn't mean allowing any official of what the Act 2020 defines as District Administration to involve in the conduct of the examinations which is the duty of the Board and the Board alone. If at all, an official of the District Administration receives some information about the use of unfair means or any other activity related to the conduct of the examination, such officer, may forward it to the Board for looking after it. The procedure provided in the 1995 Calendar for examinations and conduct of examination doesn't confer any power on any official from the District Administration to interfere in the conduct of the examinations. It is, however, clear that the officials of the District Administration and the local police have to ensure security of the examinations halls.

12. Coming to the authority under the Act 2020, particularly its Sections 13 and 18. Perhaps, the respondent # 7 considers that the Board is a "Public Agency" as defined in Section 2 (1) of the Act 2020. For ease of reference, we reproduce the above provisions in numerical order:

2. Definitions. ---In this Act, unless there is any repugnant to the subject or context,

(a) ...

[....]

(I) "Public Agency" means any department or office of Government at the level of Tehsil, District, or Division, as the case may be, notified by Government for the purposes of this Act, but does not include police, constituted under the [KP] Police Act, 2017) [...], or elected representatives of the local government constituted under the [KP] Local Government Act, 2013 [...].

13. Prohibited items.---Whenever an officer of District Administration receives information that items, banned for sale or possession or distribution by Government, District Administration or any other Public Agency, to be against public interests, through a specific order, are being sold, distributed or kept in storage in violation of the order, he may require the removal of such items from such site or shop or storage, wherever they are kept, within such time and on such conditions, as deemed appropriate in public interest: Provided that whenever any person contravenes such order, the officer making such order may enter upon such premises wherever these banned items are kept, take possession of these items for further disposal as he may deem appropriate in public interest, seal such premises, institute criminal proceedings against the violators, use such force as may be necessary and may requisition the assistance of any Public Agency to enforce his order.

Explanation: For the meanings of this sub-section, and without limiting the generality of the foregoing provision, item may include literature or books, obscene objects, audio visual recordings, pamphlets, boards, edible items, medicines and drugs or other durable and non-durable goods.

18. Powers of enquirv, entry search and seizure.--(1) The officers of District Administration, in addition to other existing monitoring mechanisms, may inspect and review the quality, standard and efficiency of public facilities in a District, and render advice to concerned Public Agency to take such measures as may be necessary for improving the quality, standard and efficiency of that public facility.

(2) For any incidental and supplementary matters pertaining to actions taken under this Act, the officers of District Administration shall have the authority to enter upon and seal any premises, vehicles, vessels and aircrafts, and make seizure of any articles, in respect of which the officer has reason to believe that a contravention of the provisions of this Act has been made, is being or is about to be committed, or effect arrest of any offenders, or seize any records connected therewith.

13. The Board is an autonomous body under the Board Act. It lies beyond the administrative control of the government. It can't be termed as a public agency under section 13. The lucidity of the legal position apart, the respondent # 7 didn't annex any notification by the government KP, declaring the Board as a public agency for the purposes of the Act. Perhaps we don't need to discuss the above referred provisions of the Act 2020 further. However, we would venture to offer some explanation for further legal clarity in the attending circumstances of the petitions in hand. The word 'order' used in Section 13 means an executive order. It, however, doesn't mean that every executive order falls within the scope of 'order' envisaged in that provision. The Board's instructions (say for the sake of arguments, order) to the candidates not to take to and use any written material in the examination hall, don't mean such material would fall within the mischief of 'prohibited items' in the specific context of Section 13. The reason simply is that such instructions are to be enforced by the Board as the sole entity responsible for the conduct of the examinations.

It follows that no other authority whatsoever has the power to enforce those instructions inside the examination hall. We, therefore, don't agree with this rather naive argument that the written material which may be used for cheating in examinations should be read as 'prohibited items' mentioned in Section 13.

14. We would now consider the application of Section 18 of the Act 2020. A bare reading of this provision would evince that it focuses on the help the District Administration may offer for improving public facilities a 'Public Agency' offers as part of the services it delivers. Needless to say, the conduct of examinations is the legal obligation of the Board under the 1995 Calendar. As we have opined above, in the specific context of the Act 2020, neither the Board is a public agency, nor does the conduct of examination by the Board, warrants any room for the District Administration for improvement. There could be no gainsaying the fact that the conduct of examination is a specialized area in which only the Board could be said to have the expertise.

15. There has been references to good governance in judgments of our higher courts in given circumstances of individual cases. For example, the Supreme Court has referred to it in the context of a government servant's refusal to obey an unlawful order (Syed Yaqoob Shah: 2002).^[1] The Lahore High Court has discussed it from the respect for the Rule of Law and fundamental rights of employees working in institutions (Muhammad Aslam: 2010).^[2] The Court cited the attributes of good governance, such as, accessibility, accountability, predictability, transparency, participation, consensus, efficiency, effectiveness, inclusiveness and ethics. The High Court of Sindh has elucidated it from the perspective of the right to a fair trial (Mirpurkhas Sugar Mills:2021).^[3] A case more relevant to the facts of the one in hand, is the 2014 case of Syed Mubashir Raza Jaffri^[4], in which the Supreme Court accentuated integral link between good governance and a strong and honest bureaucracy.

16. In the case before us, good governance is directly and substantially involved vis--vis public service delivery in the circumstances. It, thus, offers us an opportunity to define and elucidate it with greater jurisprudential subtlety. The preamble and recitals of the Act 2020 reflect that the Government of Khyber Pakhtunkhwa considers good governance, as the foundation of a progressive and just society that necessitates the establishment of a performance management system, which requires the creation of a conducive environment for expedition of change initiatives, reforms and innovations in the public sector, and which is important for the legal and administrative capacity of civil administration in order to address governance challenges. Good governance, as a cross cutting concept of development, refers to the manner in which social, economic and political institutions exercise their power for efficient management of resources.^[5] The main components of good governance are: accountability, participation, predictability and transparency. Good governance is deeply linked to human rights.

17. The UN's Office of High Commissioner for Human Rights (OHCHR) offers the following basic information in this regard: Good governance and human rights are mutually reinforcing. Human rights standards and principles provide a set of values to guide the work of governments and other political and social actors. They also provide a set of performance standards against which these actors can be held accountable. Moreover, human rights principles inform the content of good governance efforts: they may inform the development of legislative frameworks, policies, programmes, budgetary allocations and other measures.

On the other hand, without good governance, human rights cannot be respected and protected in a sustainable manner. The implementation of human rights relies on a conducive and enabling environment. This includes appropriate legal frameworks and institutions as well as political, managerial and administrative processes responsible for responding to the rights and needs of the population.^[6]

18. The OHCHR adds that amongst the key areas in which the link between the two could be organized, relevant to the issue in the case in hand, are public service delivery and the rule of law.

The former concerns with improved capacity of the State's institutions to fulfil its responsibility to deliver public goods. The latter relates to exercise of power strictly according to law and rules, in a just, transparent, accountable and fair manner. It follows that the spirit of the Act 2020 is that every individual and each institution of the State/government shall follow the law. No one is allowed to flout the law under the garb of good governance. The performance of an official of the District Administration against the letter and spirit of the Act 2020 would amount to bad governance, let alone good governance. In such a situation, the judiciary, as the custodian of law, has to ensure compliance with the law.

19. Consequent upon our above discussion and the legal principles referred, we have reached to an irresistible conclusion that the respondent # 7 has travelled beyond her power by entering into the examination hall of the petitioner-school by expelling the students and sealing the examination hall for 50 minutes. Needless to say, her illegal and wrong action on 02/05/2024 in the examination hall, caused suffering to the petitioner-school, and also created great distress to its students.

Hence, we allow prayer 'A' of the instant petition, and direct the respondent # 4 to initiate disciplinary action against the respondent # 7. To the extent of prayer '13', this petition stands infructuous being not pressed, per para 10, above. The connected petition is disposed of in light of the option exercised per para 9, above.