' This Constitutional petition has been filed to challenge the action taken by the Disciplinary Committee Examinations, Islamia University, Bahawalpur, respondent No,4 cancelling the petitioner's result of B.A. First Annual Examinations for the year 1997.
2. Briefly stated the facts giving rise to this petition are that the petitioner appeared in B.A. First Annual Examination, 1997 under Roll No, 2347 in the subject of English Papers A and B, that she had cleared the other subjects in the B.A. Second Annual Examination, 1996; that she was declared failed in the subject of English; that she filed an application for re-checking of other papers and during course of rechecking, it came to her knowledge that she was awarded 68 marks in English Paper 'B' by the Sub-Examiner but the Head-Examiner had reduced the marks to 36; that after re- checking the University sent intimation to the petitioner vide No,1615/CE dated 14-10-1997 that there was no mistake in the compilation of her result; that she challenged reduction of her marks through Writ Petition No, 5626 of 1997/BWP, which was admitted for regular hearing on 27-5-1998; that during the course of hearing of the said petition, the respondents never disclosed that there was any unfair means case against the petitioner; that on 20-4-2000 the connected petition was put up for hearing when the respondents' learned counsel placed on record an order regarding cancellation of the petitioner's result; that in this way the petitioner learnt about the impugned action and filed the present petition.
3. The petitioner's learned counsel strenuously urged that the petitioner had no knowledge about any unfair means case against her; that during the course of hearing of Writ Petition No,5626 of 1997/BWP: The University did not disclose the factum of pendency of the unfair means case; that the petitioner never received any charge-sheet from the University or any notice regarding the proceedings of the Disciplinary Committee; that the petitioner was condemned unheard; that even otherwise the impugned order is totally arbitrary and based on no evidence whatsoever; that the petitioner was exonerated of the charge under Regulation No,16 regarding making of peculiar marks on the answer sheet to disclose her identity; that she was merely punished under Regulation No,17 for the alleged approach to the Sub-Examiner; that the Disciplinary Committee did not record any evidence, not even the statement of the Head-Examiner or the Sub-Examiner and presumed in the air that the petitioner had approached the Sub-Examiner; that the action against the petitioner is tainted with mala fides and reflects hostility on the part of the University Authorities due to institution of the earlier writ petition against the University Authorities.
4. On the other hand, the learned Legal Advisor for the respondent-University urged that in matters pertaining to constitution of and action by the Disciplinary Committee, the respondent-University followed the Regulations contained in the Calendar of the Punjab University; that the Disciplinary Committee was constituted by the Vice-Chancellor of the respondent-University; that a proper charge-sheet was issued to the petitioner on her correct address but she did not submit a reply; that thereafter notices were issued to her on her known address but she did not appear to contest the proceedings; that the Disciplinary Committee had properly considered the material placed before it and rightly passed the impugned order; that the University Regulations being non- statutory, the writ petition is not maintainable. In this connection, he placed reliance on the judgment in the cases of:--
(i) Masood Pervaiz v. The Disciplinary Committee-University of the Punjab, Lahore and 2 others (1982 SCMR 1084) and
(ii) University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 SCMR 1093).
5. In reply the petitioner's learned counsel submitted that the Regulations are framed under the Islamia University Bahawalpur Act, 1975 and are enforceable through a Constitutional petition. In this connection, he placed reliance on the judgments in the cases of:--
(i) Islamia University, Bahawalpur through Vice-Chancellor v. Dr. Muhammad Khan Malik (PLD 1993 Lahore 141) and
(ii) University of Punjab through its Vice-Chancellor, Lahore and another v. Mrs. Ruhi Farzana and 3 others (1996 SCMR 263).
6. First of all, I would deal with the legal objection regarding maintainability of the writ petition. The Regulations are prepared by the Academic Council of the University and become valid and operative on receiving the approval of its Syndicate as provided under section 31(2) of the Islamia University, Bahawalpur Act, 1975. The Regulations though framed by the domestic body of the University have the force of law in respect of all matters enumerated under clauses (a) to (p) of section 31(1) of the Act. Section 15(1) of the Act casts a duty upon the Vice-Chancellor to ensure compliance of the provisions of the Act, the Statutes, the Regulations and the Rules. Section 15 (1) of the Act is reproduced below for ready reference:-- "The Vice-Chancellor shall be the principal executive and academic officer of the University and shall ensure that the provisions of this 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 effect of section 15(1) quoted above was examined in the case of Dr. Muhammad Khan Malik (relied upon by the petitioner's learned counsel). It was held that being the principal executive and Academic Officer of the University, the Vice-Chancellor is to run, regulate, manage and supervise the University; that by virtue of the provisions of section 15 (1) of the Act, the Vice-Chancellor had to ensure the implementation of the Act, Statutes, Regulations and Rules. It was further held as under:-- "In brief the functionaries of the State/functionaries of statutory bodies/functionaries of statutory corporations/functionaries of statutory Universities, are required to act strictly within the defined sphere of their authorities under the law. If there is any transgression of powers, the abuse of powers or colorful exercise of powers, the exercise is open to correction in Constitutional jurisdiction of the superior judiciary."
' The various authorities/bodies of the University are the creation of the University Act, Statutes, Regulations and Rules are framed by the defined authorities within the prescribed limits. Therefore, the various University Authorities are equally bound to perform their functions in accordance with the provisions of the Act, the Statutes, Regulations and Rules of the University framed in accordance with the express provisions of the Act. The failure of the University Authorities to act in accordance with the provisions of the Statutes, Regulations etc. Will tantamount to failure of the Vice-Chancellor to fulfill his statutory obligations enshrined in section 15(1) of the Act. Therefore, this Court can entertain a Constitutional petition and on being satisfied that the express provisions of the Statutes, Regulations etc. Have been violated, can declare the action of the University Authorities to be without lawful authority and of no legal effect and direct the Vice-Chancellor to ensure faithful compliance of the Statutes, Regulations etc. For' the purposes enumerated in section 15(1) of the Act.
7. In the case of Mrs. Ruhi Farzana relied upon by the petitioner's learned counsel, the Hon'ble Supreme Court of Pakistan was pleased to hold as under:- "Even in administrative matters it is not the sole discretion of the authority to pass orders in any manner it likes. It must follow the rules and principles of justice and equity so that even the person against whom order has been passed should not stamp it as mala fide and a result of bias or malice."
' In this case the writ petition filed by Mrs. Ruhi Farzana was allowed by the High Court and the judgment was maintained by the Hon'ble Supreme Court of Pakistan by refusing to grant leave to appeal. The case involved interpretation of Regulation No,23(b) of Chapter VII relating to conduct of examinations contained in the Calendar of University of the Punjab for the year 1990, Volume 1.
Thus, the Regulations were given their due legal weight and the writ petitioners were not non-suited on the ground that the Regulations' being non-statutory were not enforceable through the petition under Article 199 of the Constitution of Pakistan. In the case of "Muhammad Aslam Cheema v.
University of the Punjab through Vice-Chancellor, Lahore and another" (1998 CLC 5) a Division Bench of this Court had interpreted and given effect to the mandatory provisions of Regulation No,IV (contained in the Calendar of the University of the Punjab) whereby grace marks were not to be awarded to any candidate who had appeared in the examination in parts. In the case of "Nadir Khan and others v. Principal, Khyber Medical College, Peshawar and others (1995 SCMR 421) it was held that Regulations Nos.6 and 21 framed by the Pakistan Medical and Dental Council were applicable to all Medical Colleges irrespective of the fact whether the prospectus issued by various Medical Colleges contained similar provisions or not. In the case of "Miss Saima Batool v.
Rawalpindi Medical College, Rawalpindi through Principal and 4 others" (1998 SCMR 330) the Regulations for the degree of Bachelor of Medicines and Bachelor of Surgery framed by the Medical and Dental Council came up for consideration before the Court. The relevant Regulation provided that any student who failed to clear First Professional M.B.,B.S. Examination in four chances availed or unveiled after becoming eligible for the examination shall cease to be eligible for further medical education in Pakistan. Leave to appeal was granted by the Hon'ble Supreme Court of Pakistan because there was nothing to show that the Regulations were approved by the Academic Committee/Syndicate as required under section 15 (3) of the Punjab University Act.
1973. It clearly implied that in case the necessary approval had been granted then the Regulation would have become valid and operative. In all the above-quoted judgments, the aggrieved persons were either granted or refused relief by considering the relevant Regulations. Any other view might throw the students/examinees at the mercy of the University Authorities and promote rule of arbitrariness instead of rule of law in the Universities. In all matters relating to careers of students/examinees, this Court can competently entertain the Constitutional petitions on being satisfied that any principle of law or any provision of the University Act or the Statutes, Regulations or Rules framed thereunder by the competent authorities has been violated. The judgment in the case of Ch. Sardar Ali relied upon by the respondents' learned counsel is distinguishable because the subject-matter pertained the non-statutory appointment as a lecturer in the Law College and termination of appointment during the probationary period. In this context, it was held that the writ petitioner could not invoke the non-statutory Regulations governing terms and conditions of the employees of the University issued for its internal or domestic use.
8. Coming to the merits of the case, first of all, it has to be seen as to how the unfair means case was initiated against the petitioner. In the charge-sheet, columns Nos.4 to 8 have been left blank.
Column No,4 reads as under:--
(4) Whether the case was registered:-
(i) at the examination center;
(ii) on Examiner's Report;
(iii) on receipt of a complaint; ' Since the above-quoted columns were left blank, it can be safely inferred that the case against the petitioner was not registered at the examination center or on Examiner's Report or on receipt of a complaint. It appears to have been initiated at the instance of the Controller of Examinations on whose behalf the charge-sheet was issued to the petitioner (though signed by the Deputy Controller). The record contains charge-sheet No,3588-CE, dated 2-6-1998 purporting to have been sent to the petitioner through registered post by the Deputy Controller for Controller of Examinations. The charge-sheet contained two allegations, first that the petitioner had made peculiar marks in the answer books of Papers A and B in the subject of English to disclose her identity and the second that she had approached the Sub-Examiner of English Paper 'B' and made some insertions in questions Nos.5 and 6.
' The alleged specific marks or the insertions in questions Nos.5 and 6 were not specified in the charge-sheet. Moreover, there is nothing to show that the charge-sheet was ever received by the petitioner. Therefore, letters dated 18-6-1998, 13-10-1998 and 27-10-1999 were allegedly sent to the petitioner but she did not appear before the Disciplinary Committee. A notice was got published in the daily "Nawa-e-Waqt" dated 4-11-1999 calling upon the petitioner to appear before the Committee on 20-11-1999 at 11-30 a.m. But she failed to do the needful. The Committee proceeded to take ex parte action against the petitioner on 20-11-1999 and held her guilty under Regulation No,17 and quashed her B.A. Result. The action taken by the Disciplinary Committee cannot be sustained for the following reasons:--
(i) The Disciplinary Committee was not properly constituted. The Calendar of the Islamia University, Bahawalpur (1981-82) does not contain any Regulation regarding constitution of a Disciplinary Committee, although in Regulations Nos.19 and 21 contained in Part 4, Chapter 1 relating to Conduct of Examinations, references have been made to the Disciplinary Committee. The learned counsel for the respondent University pointed out that in matters not covered by the Calendar of the respondent University, the Regulations contained in the Calendar of the Punjab University are followed. He urged that the Disciplinary Committee was constituted by the Vice-Chancellor of the Islamia University, Bahawalpur under Regulation No,4 contained in Chapter III printed at page 285 of the Calendar of the University of the Punjab. As per the said Regulation, the Disciplinary Committee must have at least three Members. The Deputy Controller of Examinations (Secrecy) has to act as Member Secretary of the Committee. The quorum for the meeting of the Committee is three members. It is further provided that if the Controller of Examinations is himself a complainant or initiates the proceedings against the candidate he shall not sit as a Member of the Disciplinary Committee. The impugned order shows that the Disciplinary Committee consisted of Dr. Shafiq Ahmad, Dr. Ghazal Kashmiri also known as Dr. Gajar Khan, Muhammad Shafiq, Controller of Examinations and Riasat Hussain, Assistant Controller. The order whereby the Disciplinary Committee was constituted by the Vice-Chancellor shows that originally it had two Members named Dr. Abdul Majeed, Professor of Chemistry and Dr. Shafiq Ahmad, Professor of Urdu and Iqbaliat. Since Dr. Abdul Majeed had retired, in his place Dr. Ghazal Kashmiri (known as Dr. Gajar Khan) was nominated. A photocopy of order dated 9-8-1999 regarding constitution of the Committee has been placed on the record by the learned counsel for the respondents, It is clear that the Committee consisted of only two Members and not three as required by the above- quoted Regulation. The Deputy Controller Examinations (Secrecy) was not included as one of the Members of the Committee, although by virtue of the relevant Regulation he had to act as Member Secretary of the Committee. The Controller Examinations himself had initiated the proceedings against the petitioner by issuing a charge-sheet to her, therefore, he was not competent to sit as a Member of the Disciplinary Committee. Similarly, the Assistant Controller was not nominated as a Member of the Committee and could not take part in its proceedings. Looked at from this angle the Committee being not properly constituted was coram non judice and the impugned order passed by it is a nullity in the eye of law.
(ii) The petitioner was condemned unheard. There is nothing to show that the petitioner was a subscriber to the daily "Nawa-e-Waqt", therefore, publication of notice in the said newspaper on 4- 11-1999 was not sufficient to establish the petitioner's service. So far as the earlier notices are concerned, even if those are presumed to have been delivered to the petitioner at her correct address, the fact remains that on earlier dates the Committee had not opted to take ex parte action against the petitioner and had adjourned the case, It is also astonishing that during the period from 13-10-1998 to 27-10-1999 no proceedings of the Committee were held. The argument raised by the petitioner's learned counsel that a notice sent to a party on his/her correct address will be presumed to have been delivered to him, even if accepted cannot ensure to the benefit of the University qua the last date of hearing i,e, 20-11-1999 when the impugned order was passed by the Disciplinary Committee. The petitioner's service for the said date is entirely dependent on the publication of notice in the daily 'Nawa-e-Waqt' and as observed above, there is nothing to show that the petitioner is a subscriber of the said newspaper. Hence the petitioner was condemned unheard.
(iii) There is no evidence on the record whatsoever to show that the petitioner had ever approached or tried to approach the Sub-Examiner for award of higher marks. The petitioner was exonerated of the charge under Regulation No,16 regarding making of peculiar marks for disclosing her identity. She was penalized under Regulation No,17 for approaching the Examiner. The said Regulation is reproduced below for ready reference:- ' Candidates guilty of communicating or attempting to communicate, with examiners with object of influencing them in the award of their marks, shall be deemed to have used, or attempted to use, unfair means within the meaning of Regulation 13 and shall be punished accordingly.
Communications of the nature addressed to the Controller of Examinations or other officers of the University shall be treated as falling in the same category and the candidate concerned shall be punished as in Regulation 13'.
Explanation.--An approach made by a relative, guardian or a friend of a candidate, will, as a rule be considered to be on behalf of the candidate who shall be punished as laid down in this Regulation. The making of an appeal to the examiner through an answer-book by a candidate is prohibited. The answer paper in which such an appeal is made, shall be liable to be cancelled."
The communication contemplated in the above-quoted Regulation is either through a direct approach to the Examiner by the candidate or through his/her relative, guardian or a friend. It may as well be a written communication through a letter or an appeal contained in the answer book of a candidate. There is no evidence on the record to establish the petitioner's alleged communication with the examiner in any form whatsoever. The Committee did not even record the statement of the Sub-Examiner so as to confront him with award of higher marks to the petitioner and suggest to him that he was approached by the petitioner. On his part, the Sub-Examiner had clarified in his written reply dated 3-6-1998 submitted in the connected Writ Petition No, 5626 of 1997/BWP (a photocopy of which was placed on the record of the present petition through C.M. 1 of 2000) that the answer books bear the fictitious Roll Numbers and it is not possible to know the real Roll Number of an examinee; that he did not know the writ petitioner; that he had no knowledge about the place of origin of the answer books sent to him; that he had marked the papers with complete impartiality; that the Head-Examiner had reduced the marks himself and sent the paper to him; that he agreed with the reduction of marks merely because in case of difference of opinion, the view of the Head-Examiner had to prevail as provided under Regulation No,12, Chapter 5 of the University Calendar (1981-82). At the end of the reply, he firmly asserted as Under:-{{URDU TEXT}} ' The University Authorities were aware of the position taken up by the Sub-Examiner in his written reply dated 30-6-1998 and in all fairness ought to have recorded his statement before taking action against the petitioner.
(iv) Since the petitioner was not found guilty under Regulation No,16 pertaining to peculiar marks made in the answer book to disclose her identity, mere award of higher marks by the Sub-Examiner might have been due to an error of judgment. The penal Regulations affecting career of a student must be strictly construed and where two views are possible, the one favorable to a candidate/examinee should be preferred. It may be observed that in the charge-sheet the alleged peculiar marks were not specifically mentioned. So far as the alleged approach to the Sub- Examiner in ; view of some insertions in questions Nos.5 and 6 is concerned, the Committee neither specified the alleged insertions nor recorded a clear finding to the effect that the same were the result of approach to the Sub-Examiner. It merely passed a general order holding the petitioner guilty of using unfair means within the meaning of Regulation No,17. Such an order appears to be arbitrary and illegal. Discussing the scope and extent of emergent powers of the Vice-Chancellor, it was held in the case of Dr. Muhammad Khan Malik (referred to in para.6 above) as under:-- "The question for decision is whether this power is arbitrary, unfettered and circumscribed. After the survey of the Act and section 15 as a whole, we are persuaded to say 'no'. Being repository of public power, the Vice-Chancellor is subject to limitation imposed by the Act. Seen from this background, we would like to note peculiar feature of the University that it is a place of high learning from where the Statsmen, the Jurists, Administrators of high caliber, teachers and scientists come. Such institution had to be run on the golden principles of rule of law."
Hence, any action taken or order passed by the Vice-Chancellor or the statutory authorities of the University promoting the rule of autocracy or arbitrariness cannot be sustained.
(v) The impugned orders smacks of mala fides. Even if the Disciplinary Committee is not held liable for express mala fides, its order is clearly mala fide in law as it was passed without any just or lawful excuse/basis. It is based on surmises and conjectures and can be safely termed as fanciful.
The feeling is irresistible that the Committee had proceeded with the preconceived notion of taking action against the petitioner without much anxiety for any sound legal and factual footing to justify its action/order.
9. For the foregoing discussion, the petition is accepted, the impugned order, dated 20-11-1999 passed by the Disciplinary Committee, respondent No,4 is declared to be arbitrary, mala fide in law, without lawful authority and of no legal effect. The petitioner has suffered untold hardship, and mental torture due to illegal acts of the respondents and remained locked in litigation since 18-11- 1997. Therefore, the respondents are directed to pay costs of Rs,20,000 to the petitioner.