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Writ Petition No. 3027 of 1983, decided on 22nd January, 1984.

---Art.9--Educational institution--Disqualification of candidate to appear in examination for 2 years--Disciplinary Committee arbitrarily disqualify ing--Candidate for appearing in examination for 2 years--Petitioner challenging validity of such order before High Court in writ jurisdic tion--High Court advising Vice-Chancellor to reconsider case of petitioner--Disciplinary Committee modifying its earlier order and cancelling paper of Special Pathology and directed petitioner to re-appear in that paper--Delay in delivering intimation regarding decision of Disciplinary Committee resulted in preventing candidate from earning eligibility to appear in final examination--Result withheld on that account--Order impugned in writ jurisdiction--Held: Petitioner not to be made to suffer for illegal acts and faulty performance of University authorities who must compensate for time they had made petitioner to lose--Impugned order declared being without lawful authority, with direction to authorities to declare result of petitioner.

Muhammad Anwar Ahmad Khan for Petitioner.

Ch. Muhammad Farooq for Respondents Nos. 1 and 2.

Dates of hearing: 20th, 21st December, 1983 and 10th January, 1984.

The events and circumstances culminating in the filing of the present writ petition by Miss Shahida Parveen seeking redress of her grievances against the University of the Punjab may be shortly stated. Miss Shahida Parveen, the petitioner, took her Third Professional M.B.B.S. , Supplementary examination of 1979 held on the 20th May, 1981. in the paper of Special Pathology (in which she had appeared in the Third Professional Annual Examination but had failed) at King Edward Medical College. Lahore Centre. She was proceeded against by the Disciplinary Committee of the University of the Punjab for having changed centre of examination without proper permission. By its order of the 30th August, 1981, the Disciplinary Committee disqualified her for appearing in examination for two years. She challenged the validity of the order by Writ Petition No.4553 of 1981, during whose pendency the learned counsel for the respondents advised the Vice-Chancellor of the University, respondent 1, for reconsideration of the petitioner's case by the Disciplinary Committee which should give an opportunity to the. petitioner to defend herself because the Committee had earlier passed ex parte order. On the 14th October, 1981, Mr. Muhammad Yaqub, Controller of Examinations of the University, respondent 2, informed this Court that the Vice-Chancellor had ordered under regulation 21 pertaining to the conduct of examinations for reconsideration of the petitioner's case by the Disciplinary Committee. On the 26th November, 1981, the Disciplinary Committee modified its earlier order of the 30th August, 1981, and in place of disqualifying the petitioner from appearing in examination for two years cancelled the paper of Special Pathology in which she had taken examination on the 20th May, 1981, and directed that she should re-appear in that paper. As stated at the bar by the learned counsel for the respondents, the University sent on the 28th November, 1981, a special messenger, Muhammad Akram Khan, Senior Clerk, to the house of the petitioner in Gulberg-III, Lahore, at the address given by her, to deliver the intimation regarding decision of the Disciplinary Committee. The messenger is said to have reported that the petitioner was not present at her house and that he had affixed the photostat copy of the communication at her residential place at 2-00 p.m. A disclosed by the learned counsel the Controller of Examinations, respondent 2, directed on the 28th November, 1981, that intimation should be sent to the petitioner by post as well. The letter sent by registered post on the 28th November, 1981, reached the petitioner on the 29th November, 1981, at 2.30 p.m., after the examination in Special Pathology Paper had already been held in the morning that day. The learned counsel for the respondents candidly conceded that even if the intimation had been received by the petitioner on the 28th November, 1981, it was impossible for her to have availed of the chance of appearing in the Special Pathology Paper in the morning of the 29th November, 1981, because she would not have been able to complete formalities of submitting admission form etc., in time.

2. The petitioner assailed the legality of the last mentioned order of the Disciplinary Committee by amending her Writ Petition No.4553 of 1981. Her petition was accepted by this Court on the 26th January. 1982. The Court recorded a finding that the fault lay with the University authorities themselves and that the Disciplinary Committee had acted on erroneous assumption of facts in an arbitrary fashion and taken unreasonable view on the material which did not provide it with any basis for its decision for holding the petitioner guilty. It was noticed that the petitioner's case, even if the factual situation as alleged by the University authorities were to be taken to be correct, was not covered by regulations Nos. 13 and 18 relating to the conduct of examinations and that disciplinary action under regulation No.13 was wholly inadmissible. The University authorities were accordingly directed to get the petitioner's answer book relating to the examination in the subject of Special Pathology that she had taken on the 20th May, 1980, examined and declare her result.

3. It was not until the 7th June, 1982, that is, four and a half months after the decision of this Court, that the University authorities declared the result of the petitioner's Special Pathology Paper. According to the University she secured 31 out of 100 marks and thus failed. Her representation to the Vice-Chancellor for getting the paper re-evaluated having found no favourable response she invoked the extraordinary jurisdiction of this Court by filing Writ Petition No.3557 of 1982. On the 19th December, 1982, the learned counsel for the respondents for getting her paper re-evaluated according to rules and communicating to the petitioner by the 6th January, 1983.

The University authorities did not follow the time limit set by this Court and instead intimated the petitioner on the 6th February, 1983, that as a result of re-evaluation she had failed in the paper. The next examination of Third Professional M . B. , B. S. , which was open to her to avail of, was to be held on the 9th February, 1983. It was humanly impossible for her to comply with the formalities of submitting admission form and getting clearance from the University authorities for taking examination in so short a time. Therefore, she lost chance due to fault of none other than the University authorities. She sat in the next first available examination held in June, 1983, in Special Pathology Paper and got through vide notification of the University dated the 21st August, 1983.

4. The Final Professional M.B.,B.S., examination was to commence on the 16th July, 1983, that is, before the result of her examination in Special Pathology Paper which she had taken in June, 1983, was announced. As the University authorities were not prepared to allow her to 'take this examination she sought assistance of this Court by filing the present .writ petition. On the 11th July, 1983, the respondents were directed to allow her to take the Final Professional Examination being held on the 16th July, 1983, so that she should not suffer if the petition was ultimately decided in her favour. She took the examination but the declaration of result has been withheld by the University till after the decision of this petition.

5. The learned counsel for the respondents has contended that the examination which the petitioner took in June, 1983, was the Third Professional M.B.,B.S., Supplementary Examination of 1981, whereas the Final Professional M.B.,B.S., in which she appeared in July, 1983, was the annual examination of 1981. He has drawn attention to regulation 2 of the Regulations relating to Final Professional M. B.,B.S. (Revised Latest Scheme) examination appearing on pages 393-394 of Volume II of the Calendar of the University of the Punjab, which states that the Final Professional M.B.,B.S., examination according to the revised latest scheme is open to any student who, inter alia, has passed on year previously the Third Professional M.B.,B.S., examination. He has argued that since the petitioner passed the Third Professional M.B.,B.S., examination of the academic year 1981, she was entitled to take Final Professional M. B.,B.S. examination of the academic year of 1982 (which is to be held in three months time) and was not eligible to sit in the examination of the 1981 which was held on the 16th July, 1983. He stated that if she had appeared and passed the examination of the Special, Pathology Paper held at any time before 1983 there would have been no objection to her appearing in the Final Professional M . B . , B.S. examination held on the 16th July, 1983. A bare glance at the events narrated above would lead to the inevitable conclusion that it was due to the sheer fault of the University authorities and the illegal action taken by them against the petitioner that she had all along to suffer and could not sit in and clear the Third Professional M.B.,B.S., examination earlier which she could otherwise have done and did at the first available opportunity. In these circumstances applying the well-known maxim actus curiae neminem gravabit the petitioner should not be made to suffer for the illegal acts and faulty performance of the University authorities who must compensate her for the time that they made her lose. It were they who prevented her from earning eligibility to appear in the final examination for no fewer than two years. Therefore, they cannot be permitted to place further hurdle in her way this time by using regulation 2. There is no idea in making her appear in the next Final Professional M:B.,B.S. examination over again. Regulation 2 must bend under the circumstances of the case to provide relief to the petitioner.

6. In view of what has been said above the action of the University authorities in not permitting the petitioner to take the Final Professional M.B.,B.S. examination held in July, 1983, cannot but be declared to be unlawful. The respondents are directed to declare the result of the Final Professional M . B ., B . S . examination taken by the petitioner forthwith. The petition is accepted with costs.

M. I. Petition accepted.

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