TARIQ PARVEZ, J.---Jawad Habib, the petitioner has filed this writ petition, seeking declaration that he having been declared to have achieved 1st position in the Pre-Engineering Group Part-II (F.Sc.) in the Annual examination of 1996, therefore, any decision for lowering his position is ultra vires, illegal and void. He has further sought a declaration that he be awarded the 1st prize And the Gold Medal.
2. The brief facts of the case are that the petitioner is a student of Abbottabad Public School and College. He appeared in the aforesaid examination. The result whereof was declared and published in the official gazette of Board of Intermediate and Secondary Education (BISE) on 1-10- 1996 wherein he was shown to have secured 906 marks out of 1100. As such was placed as at position No,1 in the entire Board. The result was communicated to the Press which gave sufficient publicity/coverage wherein the petitioner was shown to have achieved 1st position in Pre- Engineering Group. of B.I.S.E.' Abbottabad.
3. Lateron, when the petitioner went to get his Detail Marks Certificate, and also, when saw a news clipping which has been annexed with the petition as Annexure-J, learnt that Tahir Hussain respondent No,7 has been shown to have stood first in the Pre-Engineering Examination of B.I.S.E.
4. The petitioner has challenged change of his position from 1st to position 2nd, inter alia, on the ground that respondent No,5 (Assistant Controller of Examination BISE Abbottabad) is the real brother of respondent No,7 who was later shown at the 1st position. As such the action of respondents Nos.2 to 5 was mala fide. It was also the contention of the petitioner, that once the annual result was declared the respondents Nos.2 to 5 could not be changed the achieved position of the petitioner. The respondents filed parawise comments in this Court, accepted the position to the extent that the petitioner was declared to have secured 1st position in the gazette and the result declared on 1-10-1996. They have also admitted that respondents Nos.5 and 7 are real brothers. The defence taken by the respondents was that although they declared the petitioner to be on position No,1 but in the said examination the result of respondent No,7 was to be declared lateron. The reason, whereof, was that the respondent No,7 took his part-I Pre-Engineering Examination from Peshawar Board and his detail marks certificate was not available at the time of compilation of the result of the Abbottabad Board. It was also contended on behalf of the respondents that the mistake/error or omission was not willful but infact as under the rules/if a student who has appeared in Part-I from a particular Board cannot appear for part-II of the same examination from other Board. For that purpose the rules could be relaxed by the Governor of the Province. It was also asserted in para. 9 of the parawise comments that the Governor of N.-W.F.P. had relaxed the rule in case of respondent No,7.
5. While hearing the learned counsel for the parties, certain questions were posed to the learned counsel for the respondent to clarify the factual as well as the legal position, but the learned counsel could not furnish any plausible reply to either of the questions. The first question which comes to the mind is that if the result of certain student/candidate was deferred to be declared lateron why the B.I.S.E. Abbottabad did not waited for securing the clearance of respondent No,7 before determining and publishing the top position of the candidate. The second question, is, that the D.M.C. of Part-I was available with the Principal namely respondent No,6 as at the time of admission to Part-11 the same was necessary to be filed. The third question was what compelled/persuaded respondent No,7 to appear in Part-II from B.I.S.E. Abbottabad instead of B.I.S.E. Peshawar where he has earlier appeared in part-I Examination. The fourth question is, that why the approval of the Governor in relaxing the rule by allowing respondent No,7 to appear in part-II Examination from B.I.S.E. Abbottabad has not been placed on our file. All these above questions have put us on guard and have created a substantial suspicion in our mind as to the conduct of the respondent No,7 particularly when respondent No,5 is admittedly his brother.
6. When this writ petition was admitted notices were issued to the respondents and on three dates namely 14-1-1997, 12-2-1997 and 26-3-1997 respondent No,7 was represented through a learned counsel but thereafter notwithstanding the fact that summons were issued but he did not turn up which appears to be wilful.
7. Most important and the legal point involved is that the petitioner having been once declared to have secured 1st position was vested with a valuable right which had entitled him to the 1st prize and the Gold Medal, the same could not have been withdrawn from him without giving him an opportunity of being heard. The principle of audi alteram partem is fully applicable to this case and, as such, the reversal of the petitioner from position No,1 to that of No,2 on this legal ground alone is not sustainable.
8. Mala fide is difficult to prove because it relates to the mind of an individual for which no substantive evidence is possible to be led but the same is to be inferred from the facts and circumstances of each case which is manifest in this case.
9. In recent judgment reported in 1997 SCM R 15 (Chairman, Selection Committee/Principal King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmed and another) the principle of locus poenitentiae was put into service where, the admission of a student was withdrawn and other was admitted on his seat on the pretext that the admission given was due to mistake of the Computer. It was held by the august Supreme Court of Pakistan that principle of locus poenitentiae was although available to the authorities whereby any order which was made by mistake could not be undone yet such order could not be withdrawn or rescinded once it had taken legal effect and had created certain rights in favour of the individual.
10. As discussed above where we have found that the petitioner was not given opportunity of being heard and the mistake even if genuinely committed by the concerned respondent cannot be condoned and shall not put the petitioner to disadvantageous position. It is also to be noted that the official notification/result has not been rescinded/withdrawn till to-date.
11. On 12-11-1996 this Court has passed the order directing that in the Prize distribution ceremony which was scheduled on 14-11-1996 the Medals/Awards pertaining to Pre-Engineering Group shall not be awarded/distributed. We hope that the said order has been respected and has been given effect, but if not so, we would direct that the petitioner be awarded the Medal/Award in which he achieved First position in his Group.
12. Accordingly, we accept this writ petition in terms of prayer made therein. The parties are left to bear their own costs.