' AJMAL MIAN, J. -The petitioner through this petition has prayed for the following reliefs :-
(a) To declare that the Notification, dated 23rd December, 1982 and 17th April, 1983, whereby the result of the petitioner has been cancelled in Urdu Paper I is ultra vires ab initio void without lawful authority.
(b) To declare that the petitioner is successful candidate of Intermediate Science Year 1982 directing the respondents to announce the result on the calculation of the marks on the papers in which the petitioner appeared as assessed,
(c) Any other relief that this Honourable Court deems fit.
2. The brief facts leading to the filing of above petition are that petitioner appeared in Intermediate Science Examination of 1982 for improving her position. It seems that she was served with a notice dated 30th November, 1982, by respondent No, 2 i. e. The Controller of Examinations, Board of Intermediate and Secondary Education, Sukkur calling upon her to explain before Disciplinary Action Sub-Committee of the Board in respect of a charge as per report of the Superintendent External of the Examination Centre-I of Shandadkot for having been allegedly caught while using unfair means in the Examination hall in Urdu Paper No,
1. In response to the above notice, the petitioner appeared before the Disciplinary Action Sub-Committee, which by its Order, dated 11th December, 1982, unanimously held as follows :- "The Disciplinary Action Sub-Committee cannot accept the unilateral report of only one Superintendent out of four Superintendents at the Centre to provide formal base for considering the reported case for taking action against them. As such it is unanimously decided that the results of all such cases be released."
' It further seems that the matter was placed before the Board in its meeting held on 19th December, 1982, in which the Board resolved as follows :- "That in case of the candidates mentioned from Serial Nos. 251 to 363, the papers in which the candidates have used unfair means be cancelled and the students be allowed to appear at the Annual Examination, 1983, if they are otherwise eligible."
' The effect of the above decision is that the petitioner's Paper-I Urdu was cancelled and she was allowed to reappear in the annual examination of 1983 if otherwise eligible. The petitioner being aggrieved by the above decision of the Board has filed the present petition and has prayed for the relief quoted hereinabove para. 1.
3. (a) In support of the above petition, Mr. Abdul Fattah Malik the learned counsel for the petitioner has urged (i) that since the Disciplinary Action Sub-Committee had exonerated the petitioner from the charge of alleged unfair means, the Board could not have without having further material taken a contrary view, (ii) that factually the Board had approved the decision of the Disciplinary Committee and thereafter for mala fide reason and by interpolation this decision was sought to be revised.
(b) On the other hand Mr. Muhammad Hanif Mangi, the learned counsel for the contesting respondent has urged as follows :-
(1) That this Court has no jurisdiction to go into the question, whether the Board was justified in taking disciplinary action against the petitioner, as it was a disciplinary, internal matter for the Board.
(2) That under the relevant rule, the Board being the final authority was entitled in law to take different view in the matter than the view found favoured with the Disciplinary Committee.
(3) That there is no mala fide on the part of the contesting respondent inasmuch as not only the petitioner but factually 114 candidates of Intermediate Science students were punished for unfair means and that the allegations of mala fide or interpolation are baseless.
4. At the outset, it may be observed that we would not like to enter into a question of dispute of fact and therefore, we are not inclined to examine the contention that there was manipulation or addition in the record made by the contesting respondent with the mala fide intention. The only questions requiring consideration are as to the jurisdiction of this Court and scope of authority of the Board and the Disciplinary Committee.
5. As regards the question of jurisdiction of this Court, Mr. Mangi has referred to section 28 of the West Pakistan (Board of Intermediate and Secondary Education, Hyderabad) Ordinance, 1961, West Pakistan Ordinance No, XVII of 1961, which reads as follows :- "All acts done, orders passed or proceedings taken by the Board shall be final and shall not be called in question in any Court by a suit or otherwise."
' It may be noticed that under the above-quoted section all acts done or orders passed or proceedings taken by the Board are final and cannot be called in question in any court by a suit or otherwise.
' Mr. Mangi has also referred to the case of Muhammad Rafique v. The Board of Intermediate and Secondary Education and others (1), in which the Honourable Supreme Court while declining to grant leave for appeal observed that under section 29 of the West Pakistan Board of Intermediate and Secondary Education (Multan and Sargodha) Ordinance VII of 1958 of the jurisdiction of civil Courts was excluded when the action is in pursuance of the provision of the Ordinance, whereas section 31 of the said Ordinance makes provision for exclusion, of the jurisdiction of the civil Court when the action may not be strictly in accordance with the relevant provision but only purports to be in a ordance therewith and that in the absence of bad faith a civil Court cannot go into the question of legality of the order passed by a board. In our view, a writ petition is competent if a Board acts in violation of any provision of the Ordinance under which it has been incorporated or in contravention of any statutory rules framed thereunder. We will have to, therefore, examine whether in the instant case there has been any violation of any provision of the Ordinance or the rules framed A thereunder. In this behalf, it may be pertinent to refer rules 11 to 18 of the rules regarding punishment to the candidates for using unfair means at the examinations of the Board framed in 1963 under the Ordinance, which read as follows :- (11)If a candidate tampers with or forges any entry in a certificate or any other documents issued by the Board, he shall be deemed to have used unfair means. The Sub-Committee may cancel the documents in question or cancel his result or take such other action as it may deem necessary.
(12)Notwithstanding anything to the contrary in these Rules, the Chairman shall have the power to award suitable punishment without reference to the Sub-Committee to any candidate or to any student on the rolls of a recognized Institution who creates disturbance of any kind during the examination or otherwise
(1) 1983 SCMR 1024 misbehaves in or around any examination hall, or becomes arrogant or insolent with the Examiner or the Board Authorities.
(13) The Chairman shall appoint annually a Sub-Committee called the Disciplinary Action Sub- Committee, to deal with the cases of alleged use of unfair means in connection with the Board's examination.
(14) The Sub-Committee shall elect its President for the terms of the Sub-Committee from among the personnel of the Sub-Committee. The Controller of Examinations shall be the Secretary of the Sub-Committee.
(15) The Sub-Committee shall hold meetings at Headquarters of the Board, to consider the cases laid before it and give decisions in case of each candidate.
(16) If the Sub-Committee finds that the evidence is not sufficient before them to enable them to arrive at a decision, the Sub-Committee may direct in writing that further evidence be collected and the case re-submitted to them. It is necessary that the statement of the alleged candidate should be on record. If the Sub-Committee so desires, it may even summon the candidate or any other person connected as a party or other witnesses in the case, to appear before the Sub- Committee for being examined.
(17) The decision of the Sub-Committee shall be referred to the Board for final approval.
(18) If in the opinion of the Chairman facts have been brought to light within 30 days of the receipt of the decision by the candidate which, had they been before the Sub-Committee, might have induced them to come to a decision different from the one arrived at, the Chairman may in such case order that such facts be reduced to writing and placed before the Submitted for reconsideration of the case.
' It may be noticed that rule 11 provides that if a candidate tampers with or forges any entry in a certificate or any other document issued by the Board, he shall be deemed to have used unfair means and the Sub-Committee may cancel the document in question or cancel his result or take such other action as it may deem necessary. Whereas rule 12 confers powers on the Chairman to take disciplinary action against a candidate without referring the matter to the Sub-Committee, who creates disturbance of any kind during the examination or otherwise misbehaves in or around any examination hall, or becomes arrogant or insolent with the Examiner or the Board Authorities. It may also be pointed out that rule 13 ' contemplates the appointment annually of a Sub-Committee called the Disciplinary Action Sub-Committee for dealing with the cases of alleged use of unfair means in connection with the Board's examinations. The Committee so appointed is to elect its own President among the members of the Sub-Committee in terms of rule 14. Furthermore rule 15 gives the venue for holding the meetings by the Sub-Committee i. e. The Headquarter of the Board.
It may further be pointed out that rule 16 provides that if the Sub-Committee finds that the evidence is not sufficient before them to enable them to arrive at a decision, the Sub-Committee may direct in writing that further evidence be collected and the case be resubmitted to them. It also provided that the statement of the alleged candidate should be recorded and if necessary the Sub-Committee may even summon the candidate or other witnesses in the case. Whereas rule 17 provides that the decision of the Sub-Committee shall be referred to the Board for final approval. It may also be observed that rule 18 confers power on the Chairman, if certain new material is brought within his notice within 30 days of the receipt of the decision of the Sub-Committee by a candidate and if such material is relevant which might have affected the decision of the Sub- Committee may refer the case back to the Sub-Committee for reconsideration of the case.
6. In tile instant case, it is an admitted position that the Sub-Committee exonerated the petitioner by unanimous decision dated 11th December, 1982 referred to hereinabove. The above decision was placed before the Board for final approval in terms of rule 17 when the Board resolved to cancel the petitioner's Urdu Paper No, 1 and to allow her to appear in the Annual Examination of 1983, if tile petitioner was otherwise eligible. It may be observed that the Board has not given any reason as to why it did not agree with the finding of the Sub-Committee nor it is the case of the contesting respondents that any additional material was placed before the Board which could have material bearing on the finding of the Sub-Committee. However, it was vehemently urged by Mr. Mangi, that since the Board is the authority for giving final approval to the decision of the Sub-Committee. It could have taken contrary view. In this context, it may be pertinent to point out that rule 12 referred to hereinabove indicates that the Chairman of the Board can take action without referring to the Sub-Committee only in those cases which are specified therein and have been highlighted herein above but in no other case. Furthermore, under rule 18 it is provided. That if additional relevant material is brought to the notice of the Chairman by the candidate within 30 days from the date of receipt of the decision of the Sub-Committee, the Chairman may refer back the matter to the Sub- Committee for reconsideration of the case. The above two rules are pointers to the fact that when it was contemplated to confer power on the Chairman to take action without making reference to the Sub-Committee, it has been expressly so provided in rule 12 and that even in case of further material which may be brought to the notice of the Chairman by the candidate, the Chairman himself or as a matter of fact the Board itself has not been empowered to take a contrary view than a view found favour with the Sub-Committee but the matter is to be referred back to the Sub- Committee for reconsideration in terms of rule 18 referred to hereinabove and discussed.
7. We are inclined to hold that the power to give final approval to the decision of the Sub- Committee does not entitle the Board to take different view without having even additional material before it. The Sub-Committee had considered the report of one of the four Superintendent of the Centre and also had the benefit of examining the petitioner but found material on record insufficient to condemn the petitioner for a serious charge like unfair means/practice in the examination but the Board without any reason and without assigning any reason and without having any additional material before it has taken contrary view which was no warranted under the rules. We, therefore, allow the petition and declare that the impugned action of Respondent No, I cancelling the Urdu Paper No 1 of the petitioner on the basis of The above-quoted resolution is illegal and without lawful authority and of no legal effect. The petition is disposed of with no order as to I costs.