' Dr. Amar Mahmood Ijaz has filed this Constitutional petition againt two orders of respondents/University one dated 12-9-1992 declaring him fail in the M.S. Thoracic Surgery examination held in July 1992 and the other dated 29-10-1992 rejecting his claim to declare him successful in the aforementioned examination. This order will dispose of writ petition and also C.M.
No, 2829/92 filed by one Dr. Mirza Muhammad Anwar for impleading him as a party in the writ petition.
2. Facts relevant for the disposal of this writ petition are that petitioner appeared in the aforementioned examination in July 1992 under Roll Number 20 and the examination consists of three papers namely Thoracic Surgery., Pathology and General Surgery. Petitioner obtained in these papers 60, 62 and 40 marks respectively. Result was announced on 12-9-1992 declaring the *petitioner unsuccessful whereupon he applied for re-checking of his answer books and it was shocking that three leaves containing 6 pages were missing from paper I relating to General Surgery where 40 marks were allocated. Petitioner by application dated 17-9-1992 brought to the notice of the Vice-Chancellor University of Punjab-respondent No,1, that the loss of 6 pages in the answer book relating to paper I has adversely affected his result. As he obtained 60% marks in the other two papers, he requested that he was entitled to claim average marks in paper I and he be declared successful.
3. It appears that on the basis of complaint filed by the petitioner, Controller of Examination, University of the Punjab made a reference to Prof. Dr. Iqbal Ahmad Khan, K.E. Medical College, Lahore which is reproduced as under: ' To ' Prof. Dr. Iqbal Ahmad Khan, ' K.E. Medical College, ' Lahore. Dear Sir, ' I am directed to invite your kind attention to M. S. Thoroasic Surgery, Annual Examination of 1992 which was held on 29-7-1992. Only two candidates appeared in this examination. The sealed packet of scripts was handed over to you by Mr. Sher Muhammad, Administrative Officer (Secrecy).
You were Convener, Board of ExamineRs, The papers were evaluated by the Board. Instead of evaluating each question you have given the total marks on the title page in Papers I and III. It would 'have been appropriate if each question was separately marked!, Mr. Aamer Ijaz, Roll No,20 had failed in this examination and applied for re-checking of his Papers I, II and III. On re-checking of Paper I it was pointed out that 4 pages after page (4) and two pages after page (12) were removed from the answer book. The candidate apprehends that these pages were removed to his disadvantage so that he was not given pass marks. Since the sealed packet of scripts was handed over to you, the question arises as to when and at what stage these pages were removed from the answer book of the candidate. Since you were Convener and you have evaluated the scripts and you had alongwith other examiners interviewed the candidate, you are requested kindly to point out whether that discontinuity in the answers of the questions solved by the candidate came to your notice or not and if it came to your notice did you confront the candidate with this? If the answers of the candidate did not make a mention of Clinical feature etc., did you ask him why did he not do so and left incomplete answeRs, If he answer, on the contrary, had all the pages intact kindly do make it clear as well.
' A copy of the complaint made by the candidate is also enclosed. I request you to be kind enough to send your comments as early as possible.
End: As above. Yours faithfully Sd/ (ATA MUHAMMAD SHAIKH) DEPUTY CONTROLLER (SECRECY) for Controller.
On 1-10-1992 Prof. Dr. Iqbal Ahmad Khan answered the reference in the following manner:- Date: 1-10-1992: ' The Controller of Examination, ' University of the Punjab, ' Lahore, ' Dear Sir, ' I received your letter No, 12200/UPL dated 29-9-1992. It is submitted that no discontinuity of answers came to our notice at the time of evaluation of this answer book. As such the candidate was not confronted with any question regarding his answer book. The answer book has been assessed as a whole and found unsatisfactory and poor. Yours faithfully, Sd/- Prof. Muhammad Iqbal Khan.
' After reply, Controller of Examinations by order/decision dated 29-10-1992 rejected the request of petitioner to award him average of marks despites the fact that three leaves from the answer book of the petitioner of Paper I were missing or lost. In view of this, the petitioner has challenged both orders dated 12-9-1992 and 29-10-1992.
4. By order dated 10-11-1992 of this Court, a report was called and received and it was on 3-2-1992, the learned Legal Advisor of the Punjab University on the basis of instructions suggested the re- evaluation of disputed Paper I which was opposed by the learned counsel for petitioner on the ground that re-evaluation will be of no use to the petitioner on account of the loss of three leaves as there will be no marks for the answers made on those pages. However, accepting the request of learned counsel for the University and granting him time as prayed for, the case was adjourned to 27-2-1993 when it was stated on behalf of respondents that disputed paper could not be sent for re-evaluation because there was delay in the nomination of the panel. In these circumstances, the arguments were heard on 27-2-1993 and 28-2-1993.
5. Learned counsel for petitioner has vehemently raised the following contentions:-
(i) That three leaves, containing 6 pages, are missing or lost from the answer book relating to Paper I, General Surgery, before or after evaluation of script but in any case prior to re-checking, the petitoner is entitled to average of marks in accordance with the provision of Regulation No,6 of the Calender of University of Punjab which if calculated would come to 61 marks, adding 21 marks into 40 marks already awarded in the disputed paper and the refusal thereof tantamounts to failure to exercise jurisdiction so vested.
(ii) That The respondent Vice-Chancellor did not apply his mind at all to the facts of the case and no enquiry was held whatsoever into the entitlement of petitioner and this action on his part renders both the orders as without lawful authority and of no legal effect.
(iii) That admittedly by the respondents, the disputed paper was evaluated by the Board of Examiners consisting of four Doctors namely Prof. Iqbal Ahmad Khan, Prof. Iftekhar Hussain Rathore, Prof. Jawad Sajjad Khan and Prof Muhammad Yaqub and the reference was made, on the complaint of petitioner, only to Prof. Iqbal Ahmad Khan, one of the examiners, and on his reply alone order dated 29-10-1992, rejecting the case of petitioner, was without jurisdiction and that in any case, each question was to be examined but in this case 40 marks were awarded to the petitioner collectively without going into the individual questions. This has militated considerably against the interest of petitioner coupled with the fact that no marks were awarded for the answers used in 6 pages, lost or missing.
(iv) That the reference was not fully answered by Prof. Dr. Iqbal Ahmad Khan who dealt with only one aspect of the case that there was no discontinuity of answeRs, This could not be the legal basis on which the case of petitioner was rejected.
(v) That the petitioner was not associated with the limited enquiry held in this case and no hearing was given to him and, therefore, the order dated 29-10-1992 confirming the earlier order was invalid.
(vi) That there is unimpeachable evidence on the record to show that Dr. Mirza Muhammad Anwar and his friends were working against the interest of petitioner so that latter may not get through the examination.
6. Ch. Muhammad Farooq Legal Advisor of the University has relied upon the report submitted by the respondents and further submits that the petitioner's case is covered within the second proviso of Regulation No,6 and, therefore, average marks as claimed cannot be granted to him. During the course of his straightforward arguments, he indicated that during the course of examination it was brought to the notice of Vice-Chancellor of the Punjab University that some forces were operating against the interest of petitioner. He further added that originally there were no proviso to Regulation No,6 and it was at his suggestion that these were later on added and I must say this advice "a commendable one" because it meets the situation for which there was no provision earlier.
7. It would be useful to reproduce Regulation No,6 in verbatim:-- "6. If a candidate's paper is lost after having been received by the Superintendent of the examination centre or by one of his assistants, and if he passes in all other subjects of the examination, he may be required to appear in that one paper which is lost on a date fixed by the Controller of Examinations, and if he obtains pass marks he shall be deemed to have passed the examination. In case of dispute as to whether a candidate's paper was duly received or not, the finding of the Controller of Examinations, subject to the approval of the Vice-Chancellor, shall be final: ' Provided that if an answer book/s received by an Examiner is/are lost before or after evaluation, average of the marks obtained by the candidate in other papers in which he has appeared shall be awarded to him in the said paper. The candidate shall, however, have the option either to avail the average of the marks or to reappear in the paper: ' Provided further that the benefit of grant of average marks will not be given to candidates in cases of re-checking of answer books after declaration of their results, if their answer book/s is/are lost at the time of re-checking. They will, however, have the option to re-appear in the paper/s in the next examination, if otherwise eligible. The candidate will also be allowed to claim refund of fee for re-checking."
' The respondent/University is governed by the provisions of University of Punjab Act, 1973, Punjab Act No, IX of 1973 and under section 32 of the said Act, Regulations are made. Under subsection (2) of this section, the Regulations shall be prepared by Academic counsel and shall be submitted to the syndicate which may approve them or withhold approval or refer them back to the Academic counsel for reconsideration. A regulation prepared by the Academic counsel shall not be valid unless it receives the approval of syndicate. Learned Legal Advisor while explaining the genesis of this regulation submitted that the same has undergone all the legal formalities as provided in the Act and that Board of Studies is also consulted in framing all the regulations which requirement has already been fulfilled in framing Regulation No,6.
8. After having given a little history of the relevant law, the contentions of the parties can be dealt with one by one.
9. Reverting to the first contention of petitioner, there cannot be two opinions that three leaves are either lost or missing from the answer book relating to Paper I of the petitioner. Learned Legal Advisor has been candidly very fair in placing script of Paper I on the file of this Court where there is a note on the first page that the same consists of 9 pages instead of 12 pages and obviously the pages means the leaves which would be 18 pages instead of 24. It appears that one answer book consists 12 leaves containing 24 pages. The script has been examined in presence of the learned counsel for the parties and it appears that leaves 3, 4 and 9 are missing but their remnants remain and visible. This has also been seen and taken note of by the two learned counsel. However, the learned Legal Advisor is not in a position to state who was responsible for this loss. The petitioner has taken the plea in paras. 10 and 11 of his writ petition in unequivocal terms that the damage to the answer book by way of loss of three leaves was before or after the evaluation of the paper and in any case before re-checking of the answer book at the instance of petitioner. In the corresponding paras of the report/parawise comments, this position has not been denied. On the contrary the following reply as against Para.10 of the writ petition is most relevant: "It is correct that, in two papers out of three, i,e, the Paper of Pathology and Thoracic Surgery, the petitioner was granted 62 marks out of 100 and 60 plus out of 100, respectively but, in the first paper of general Surgery, the petitioner was awarded 40 marks out of 100 which resulted in the failure of petitioner. It is also correct, that, in respect of paper of General Surgery, the candidate (the writ petitioner) pointed out that some leaflets from the answer book had been torn away at two places.
It was also noticed that, in two papers, the evaluation of answer books was made as a whole by the ExamineRs,"
' In para 14 and page 5 of the report submitted by the respondent it has been stated as under:- "One has to look into the answer book very minutely to note that some leaflets had been torn from the answer book, and when the answer book is delivered to the Superintendent, at that stage, one would be in no position to know that certain leaflets had been torn from out of the script in question. The only course open to the answering-respondents was to make a reference to the Convener of Board of Examiners (Dr. Muhammad Iqbal Khan) on the issues raised by the petitioner."
In reference, reproduced above, made to Prof. Dr. Iqbal Ahmad Khan, the Controller of Examinations brought to the notice of said Doctor as follows:- "On re-checking of Paper I, it was pointed out that 4 pages after page
(4) and two pages after page (12) were removed from the answer book. The candidate apprehends that these pages were removed of his disadvantage so that he was not given pass marks. Since the sealed packet of scripts was handed over to you the question arises as to when and at what stage these pages were removed from the answer book of the candidate."
' If one goes through the reply dated 1-10-1992 to the reference, it is abundantly clear that this aspect of the case has not at all been answered by the said Professor. Further a copy of complaint dated 17-9-1992 by the candidate was also sent with the reference to Prof. Dr. Iqbal Ahmad Khan which throughout proceeds with the loss of 6 pages adversely affecting the result of the petitioner and in spite of this, no reply was forthcoming from Prof. Dr. Iqbal Ahmad Khan.
10. From the above facts, it is fully demonstrated by the petitioner successfully that part of the answer book relating to Paper I was missing or lost and that he was entitled to be awarded marks for the answers used on these 6 pages. The plea of the petitioner that damage/loss was before or after the evaluation and that certainly before re-checking of the answer book remains un- rebutted.
11. In view of above, there is no difficulty in holding that on the basis of present record three leaves out of the answer book of petitioner were missing or lost.
12. Having held above, the next question so important to the case of petitioner is whether or not he is entitled to the average of marks in view of the first proviso of regulation No,6. The answer is in the affirmative. The petitioner admittedly has already obtained 60 and 62 marks in other two papers and the average of the marks for the purpose of paper I would come to 61. The petitioner was claiming this as a right and the same could not have been denied by the respondents who declined to exercise jurisdiction to award the average of marks of 61 in the first paper and this is not only arbitrary but capricious.
13. After going through the provisions of University of the Punjab Act 1973 it is settled that the ,provisions of the Act are so comprehensive so as to meet any situation from time to time and under para. 15 (1), the powers and duties of Vice-Chancellor are given as hereunder:-"The Vice- Chancellor shall be the principal executive and academic Officer of the University and shall ensure that the provisions of the Act, the Statutes, the Regulations and the Rules are faithfully observed in order to promote teaching, research, publication administration and the general efficiency and good order of the University. He shall have all powers necessary for this purpose including administrative control over all officers, teachers and other employees of the University."
' The duties of the Controller of Examinations are in accordance with section 19 of the aforesaid Act which is hereunder:- "The Controller of Examinations shall be a whole time officer of the University and shall be appointed by the Syndicate on such terms and conditions as may be determined by it. He shall be responsible for all matters connected with the conduct of examination and perform such other duties as may be prescribed."
' Re-production of powers and duties of the Vice-Chancellor and other officer is for the purpose that in the present case both of them have failed to ensure the faithful observance and implementation of regulation No,6. None of the officers held an enquiry into the matter as to who was responsible for the loss of the missing sheets pertaining to the most important examination taken by the petitioner. If that be the position and the authorities have to act as post office in forwarding complaints of the candidates to others and then give decision by their inaction the most important provisions of the Act would be rendered frustrated and nugatory. As the educational institutions exercise parental jurisdicton, it was the bounden duty of the Vice- Chancellor to have taken up the matter and applied his mind to the facts and circumstances of the case and would come to a reasonable decision. Not that the complaint of petitioner was forwarded by the Controller of Examinations to one of the Examiners and thereafter to decide the matter against the petitioner. Even the letter dated 29-10-1992 rejecting the claim of petitioner to declare him successful is communicated by the Controller of Examinations and not by or on behalf of the Vice-Chancellor. Learned counsel for respondents have not only placed on the file of this Court the script but also so-called enquiry into the matter referred to above. But I do not find a single note whereby the matter has been placed before the Vice-Chancellor for his due consideration keeping in view the rights of the petitioner. As is observed above, the disputed paper was to be re-evaluated in view of the suggestion of learned counsel for respondents who without loss of any time, suggested that Paper I should be reevaluated or assessed but no timely action was taken by the Controller of Examinations or the Vice-Chancellor for appointing the Board of Examiners and it was for this reasons that hearing of the case commenced on 27-2-1993. It is high time that the respondents and their officers should perform their duties in an institution so important to every one. I, therefore, hold that in the absence of any enquiry by the Vice-Chancellor, the rejection of the case on 29-10-1992 by the Controller of Examinations suffers from such a legal infirmity that it can only be remedied by awarding the average of marks to the petitioner in view of regulation No,6 which is his right and not a mere concession.
14. Admittedly there are two candidates including the petitioner who sat in the examination and the Board of Examiners was appointed for evaluating the answer books and to examine each question and to award marks. This legal procedure has not been adopted in the present case. However, the petitioner filed a complaint and the same was only referred to Prof. Dr. Iqbal Ahmad Khan, one of the examiners, and on his reply alone the case of petitioner was rejected for declaring him successfully. It is not understandable why reference was not made to the Board of Examiners, when Prof. Dr. Iqbal Ahmad Khan was the convener only and one of the membeRs, Reference to one of the examiners was, therefore, wholly illegal and without legal justification; particularly when the petitioner pleaded in para. 14 (b) of his writ petition that this Doctor was reported to be against the petitioner. These allegations'are not denied in the report and the referring authority should have been extra careful to do justice to the petitioner which is certainly lacking in this case. I have already examined that this Doctor did not go into the question regarding the loss of a part of the answer book in spite, of point out to him in the reference but merely replied that there was no discontinuity of answeRs, Even if it be so, there may not be any discontinuity in the answers solved on the missing leaves. The part of questions solved on the missing sheets may be complete by themselves. These observations are being made to show that the reply to the reference does not deal with crucial issue which could be the legal basis for deciding the rights of petitioner. In view of this, the reference, reply and decision dated 29-10-1992 based thereon cannot have the blessing of law.
15. As to the contention of learned counsel that petitioner was not associated in the enquiry and for that matter not heard by any one of the respondents required serious consideration. It is stated by Prof. Dr. Iqbal Ahmad Khan in his reply dated 1-10-1992 to the reference that there was no discontinuity of answers and, therefore the candidate was not confronted with any question regarding his answer book. The petitioner, therefore, was not heard by the said Doctor nor by any one of the respondents before impugned order dated 29-10-1992 was passed. It is reiterated by the learned counsel for the petitioner that he handed over the answer book to the Superintendent of the Centre intact and in case of any damage at that point of time, the officer in-charge must have taken note of it and reported the matter to the authorities concerned, therefore, the part of answer book is lost either before or after evaluation but before re-checking of answer books. Lot of grievance is made that petitioner could explain the issue of discontinuity in case he had been summoned or given hearing and this having not been done, the impugned order dated 29-10-1992 is liable to be declared as invalid or quashed on the ound of non-hearing. The contention appears to be not without any force as e law is fully settled that no person can be condemned unheard. The question ether a person is entitled to notice, Lord Danning has said "if the right to be beard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him." Kanda v. Government of Malaya (1962) A.C. 322, 337. See also A.G. v. Ryan (1980) A.0 718; Hadmor Productions Ltd. v. Hamilton (1982) 2 W.L.R. 322 Cf. R. v. Secretary of State for the Home Department, exp. Santillo (1981) Q.B.
778.
' In Administrative Law by P.P. Craig it is said that the right to notice manifests itself in a number of ways. Thus, it is contrary to natural justice to inform an individual of only of complaint against him if there are two, or to find him guilty of a different offence from the one he was actually charged with.
Similarly, it was held to be contrary to natural justice to confirm an order on facts which the individual had no opportunity to show to be erroneous. Board of Trustees of the Maradana Mosque v. Mahmud (1967) 1 A.C. 13, 24- 25, Lau Liut Mang v. Disciplinary Committee (1968) A.C.
39. Fairmount Investments Ltd. v. Secretary of State for the Environment (1976) 1 W.L.R. 1255, 1260, 1265-1266: see also R. v. Deputy Industrial Injuries Commissioner exp. Jones (1962) 2 Q.B. 677, 685; Sabey & Co. Ltd. v. Secretary of State for the Environment (1978) 1 All E.R. 586; Norwich City Council v.
Secretary of State for the Environment (1982) 2 W.L.R.
580.
' In one case Dr. Bentley obtained an order of mandamus to secure his reinstatement to degrees of which he had been deprived by the University of Cambridge without notice or hearing. R. v.
Chancellor of the University of Cambridge (1723) 1 Str. 557, Constitutional and Administrative law by de Smith New Edition page 586.
16. I believe that there may be more cases for award of average of marks under Regulation No,6 but there is one reported in 1990 CLC 316 "Shahzad Munawwar Butt v. Vice-Chancellor University of the Punjab, Lahore" where in similar circumstances the writ petition was accepted and average of the marks was granted when the script of writ petitioner relating to Paper I Pharmaceutical Chemistry II (Physical) was not traceable.
17. While dealing with the case "Fazal Karim Chaudhary v. The Punjab University" PLD 1955 Lahore 404, learned Division Bench of this Court held as follows: "We have no doubt that the duty which the University performs in this behalf is of a public character. The power to issue a mandamus to an educational institution in these circumstances has never been denied. Thus, in the King v. Chancellors, Masters and Scholars of the University of Cambridge 92 English Reports 818, an application for issuing writ of mandamus was taken out to restore one Richard Bentley to his degree of Doctor. Of Divinity. He has been degraded by the Vice- Chancellor's Court for having been guilty of contempt in speaking opprobrious words against the Vice-Chancellor. One of the grounds of objection raised by him was that in the Vice-Chancellor's Court he was not summoned and that this was contrary to natural justice and against the law of God and man. The learned Judges held: `This is a very proper mandamus for it is to restore a member of a great corporation to a great office, a dignity and a freehold.' The mandamus was issued on the only ground that the petitioner was not summoned in the Court."
' In PLD 1975 Lah. 1385 "Zahid Iqbal Raza v. Controller of Examinations, Punjab University" it is observed that "there is no denying the necessity of leaving the educational institutions to function according to their own Rules, Regulations, or modes of behaviour, so as to enable them to impart education and inculcate truth and discipline in the minds of the students who come in their portals.
However, it is of equal importance that the persons who come to seek knowledge and truth must also learn that everybody, including themselves, should be dealt with fairly, reasonably and on basis of facts and not arbitrarily, or, fancifully. The elementary rules of natural justice are applicable to the educational institutions as well. It is so laid down by their Lordships of the Supreme Court of Pakistan in the case of University of Dacca through its Vice-Chancellor and the Registrar University of Dacca v. Zakir Ahmad (PLD 1965 SC 90) and Abdus Sabur Khan. v. Karachi University and Controller of Examinations (PLD 1966 SC 536). These cases lay down that before a person can be made to suffer, he must have an adequate opportunity to defend himself."
18. In view of above, the respondents were bound to give a notice or afford an opportunity of hearing to the petitioner before the impugned orders were passed against him and non-fulfilment of requirement of natural justice would render the impugned orders as nothing but without jurisdiction. The stand of the respondents in this regard in para 14 is that "in such domestic enquiries by educational institutions, the candidates are not required to be associated and the contention that he was condemned unheard is entirely untenable". This plea runs contrary to the established law laid down by the Superior Courts.
19. As to the last contention that petitioner was the victim of Dr. Mirza Muhammad Anwar and his friends, may be dilated upon. It is stated in the petition that petitioner passed M.B.-B.S. Examination from the University of the Punjab in the year 1985 and thereafter in 1987-88 he secured admission to the Post-Graduate Medical Institute as a student of M.S. Tharocic Surgery. That on the approval of his thesis in M.S. Thoracic Surgery in 1990 by respondent No,1 in accordance with prescribed procedure, the petitioner was required to appear in the M.S. Thoracic Surgery to start from 10-7- 1990. But unfortunately out of malice Dr. Muhammad Anwar Mirza, the present Thoracic Surgeon of Mayo Hospital, Lahore through his agent/subordinate Dr. Nasir Iqbal Medical Officer of the same ward started malicious campaign of hostility against the petitioner and got the examinationn postponed just a day before its commencement which was got reconvened with great difficulty w,e,f, 15-7-1990 in which the petitioner appeared. But respondent No,1 could not declare his result for 8 months on account of obstructions caused by the same complainant. Unfortunately, the petitioner was declared fail after the lapse of 8 months. It is also stated in para 4 of the writ petition that before the declaration of said result, however, the petitioner left for England on scholarship for undergoing a training fellowship in Thoracic Surgery awarded to him by the British Thoracic Society and on completion of this training at two different hospitals for a period of one year, he was awarded a certificate by the British Thoracic Society.
20. In para 5 it is stated that relevant examination was to be held by respondent No,1 in July 1992 but Dr. Muhammad Anwar Mirza started a campaign of hostility against the petitioner by challenging his eligibility to appear in the said examination through the same subordinate Dr. Nasir Iqbal. This time he again succeeded in getting the examination postponed. But respondent No,1 again agreed to reconvene the examination w,e,f, 29-7-1992. In para 6 of the writ petition there is a reference that Dr. Muhammad Anwar Mirza, without any locus standi, filed a writ petition No,7174/92 in Lahore High, Court Lahore challenging not only the holding of said examination by respondent No,1 but also the eligibility of the petitioner to appear in the said examination and that interim relief for withholding the examination of at least the declaration of his result was also prayed for which was rejected by order dated 3-8-1992 of my learned brother Gul Zarin Kiani, J. The file of writ petition filed by Dr. Muhammad Anwar Mirza was requested to be summoned while filing the present writ petition, by the petitioner, where finally the writ petition was dismissed in limine on 13- 10-1992 by my learned brother Mian Saeed-ur-Rahman Farrukh, J. The prayer in the writ petition was that holding of examination in the subject of Master of Surgery (Thoracic Surgery) by respondent No,1 under notification dated 28-7-1992 be declared to be without lawful authority and of no legal effect. It was further prayed that either further holding of examination be stopped or his declaration be suspended. As observed above, by a detailed order dated 13-10-1992, the writ petition was dismissed in limine as the writ petitioner Dr. Muhammad Anwar Mirza had no locus standi to file the same. It is informed by the learned counsel Mr. Amir Alam Khan appearing in C.M.
No, 2829-92 that I.CA. Against the dismissal of writ petition is pending in this learned Court but the same has not been placed before any learned Bench.
21. Learned counsel for petitioner submits that Dr. Mirza Muhammad Anwar considers himself to be the only qualified doctor in Thoracic Surgery and would not let anyone else to pass the examination and that the aforementioned facts visualize that the said doctor is responsible for the failure of petitioner as regards the loss or missing of the part of answer book. Learned counsel further submits that in the aforementioned Writ Petition No, 7174-92 filed by Dr. Muhammad Anwar, the petitioner was dragged as respondent No,2 and that having done his best through false litigation which ultimately found to be unfavourable to him, the said doctor damaged him indirectly.
22. As to the allegations regarding postponement of the examination from time to time, these facts are admitted in the report and this is also correct that writ petition was filed by Dr. Mirza Muhammad Anwar impleading the present petitioner as one of the respondents where he prayed that holding of examination under notification dated 28-7-1992 be declared to be without lawful authority. I have given my anxious consideration to the contention of the learned counsel for petitioner to find out if there is any material on the record that the said Dr. Mirza Muhammad Anwar was responsible for the loss of three leaves of the petitioner's answer book relating to Paper I but I find that there is no such material. It may be that the said Doctor was acting as a play back singer to damage the petitioner but there is no such evidence/material against him to substantiate the allegation.
23. C.M. 2829/92 was filed by Dr. Mirza Muhammad Anwar for impleading him as party in the writ petition and the same was allowed subject to all just exceptions. The arguments have been heard on this application and learned counsel for petitioner relied upon 1985 SCMR 714 "Pakistan Banking Council v. Ali Mataram Naqvi" and PLD 1972 Lahore 169 "Messrs Jans Caterers v. The Islamic Republic of Pakistan through the Chairman Pakistan Western Railway, Lahore" to show that present petitioner has no locus standi to be impleaded as party in this writ petition. On the contrary, Mr. Amir Alam Khan learned counsel for applicant, Dr. Mirza Muhammad Anwar, relied upon 1986 CLC 1828 "Allah Rakhio v. Khushmir Khan" in support of his preposition that the applicant is entitled to be impleaded as party. When questioned to the learned counsel for applicant why his client would like to be impleaded as party, he states that he apprehends some observations from this Court in view of the allegations levelled by the petitioner and in case there are none then the applicant is not interested to press his application.
24. I have already observed that there is no material on record making Dr. Mirza Muhammad Anwar responsible for the loss of three sheets and in view of this, there is no difficulty in holding that the applicant cannot be impleaded as party in this case. This C.M., therefore, stands dismissed.
25. For the aforesaid reasons two orders/decisions of the respondents one dated 12-9-1992 declaring the petitioner fail in M.S. Thoracic Surgery Examination held by respondent No,1 in July 1992 and subsequent dated 29-10-1992 rejecting the claim of petitioner for declaring him successful, are without lawful authority and of no legal effect and it is declared that petitioner is entitled to the average of marks obtained by him in other two papers, which would come to 61 in disputed paper I and in this way he is declared successful in aforesaid examination held in July, 1992. It is further directed that respondents shall issue a formal notification in favour of petitioner declartaing him successful in the examination in question, forthwith. The writ petition is accepted in terms as prayed for and respondents to pay costs to the petitioner.
' Office to transmit a copy of this judgment to the learned Legal Advisor of the University and the original file be returned to him by the O.S.D. (Judicial).