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Writ Petition No. 550 of 1959, decided on 17th December, 1959.

S. 2 (4)‑Constitution of Pakistan (1956), Art. 170‑Writ jurisdiction‑Equitable‑Cannot be exercised for enforcement of technicalities.

Abid Hassan Minto for Petitioner.

Sh. Abdul Haq for Respondent.

Date of hearing : 17th December, 1959.

In this writ petition Safdar Hussain, who was a student in the Municipal College, Lyallpur, and was expelled on the 14th of May, 1959, challenges the order of his expulsion.

2. Admittedly, there was a fight between two groups of students of the Municipal College, Lyallpur, on the 9th of May, 1959. In order to enquire into the event and pass proper. orders of punishment, the Principal constituted a Committee consisting of himself, two members of the College Council (which council had been constituted in accordance with the prospectus of the college) and two other members of the staff. This Committee, after investigation, awarded punishment to seven students out of whom two i.e., one Muhammad Afzal and the petitioner were ordered to be rusticated for a period of two years. Later, how ever, the order of rustication of Muhammad Afzal was withdrawn because his guardian as well as he himself tendered apology. The petitioner, in accordance with the allegations of the respon dent i.e., the Principal of the Municipal College, did not either tender a proper apology nor did he undertake not to misbehave in future and his expulsion was duly notified by the Board of Secondary Education on the 22nd of May, 1959.

3. In this writ petition the order of expulsion is challenged on two main grounds. The first is that under the rules that are applicable, the order could have been passed only by a properly constituted College Council and the Committee, which in fact passed the order, was not such a council. The second is that there was no proper opportunity afforded to the petitioner to show cause. In this respect, the allegations of the petitioner are, that he was summoned by the Principal, who questioned him only as to the connection of Mr. Abdus Salam, a member of the staff, with the fight, the petitioner's case being that there is serious rift between two groups in the College staff, one headed by the Principal and the other headed by Mr. Abdus Salam, Senior English Professor.

4. So far as the first ground is concerned, admittedly the law applicable is Punjab Board of Secondary Education Act and the rules and regulations framed there under. Under section 20 of the Act the Board of Secondary Education is empowered to frame rules with respect to such matters as may be prescribed by the regulations. Regulation 4 (21) provides for rules with respect to rustication and expulsion. The Board of Secondary Education bad framed rules relating to rustication and expulsion out of which the rules relevant for our purpose are rules 8 and 9, which are reproduced below:‑--

"8. The authority for expulsion and rustication of a student shall vest in:

(i) Inspector or Inspectress in the case of a School.

(ii) The College Council in the case of a College or a four years Institution consisting of 9th, 10th, 11th and 12th classes.

"9. Each College shall appoint a College Council consisting of the Principal and at least 5 other senior members of the staff to consider the cases of expulsion and rustication of students. The names of the members of the Council so formed shall be communicated by the College to the Board each year."

It may be observed that in the present case in accordance with rule 8 orders for expulsion or rustication were to be passed by the College Council. This College Council was to consist of the Principal and five other senior members of the staff. It is conceded on behalf of the respondent that at the time when this incident took place there was as yet no College Council appointed in accordance with rule 9 because the rules had come into force only a short time before. It is alleged on his behalf that after this incident a College Council was constituted con sisting of the Principal and five members of the staff and that out of those five members four took part in the investigation and had signed the order of expulsion, the fifth being on leave that day. However, it is clear from the file that the case bad not been handed over to any College Council appointed under rule 9. The report of the Committee which passed orders itself says: "Since the case appeared to the Principal getting quite serious and grave in its nature, he constituted a Committee of the two senior members Ch. Ata Muhammad and Mr. Muhammad Asghar (College Council) with Mr. Yusuf Zahid (Superintendent) and Mr. Rizvi (of the Department of English) as its auxilliary members".

5. The College Council, which is referred to in the above extract, is the one which had been appointed in accordance with the prospectus of the college. This council consisted of only three members. Out of this College Council, two had been placed on the Committee which was to investigate this matter. It is quite clear that the Principal was not thinking of the College Council when he appointed this Committee, otherwise he would have simply said that he was referring the matter to the College Council and not to a Committee which consisted of the members of the College Council and some others.

6. It is true that technically the council had not been properly constituted, but we are not inclined on this account to upset the impugned order. The equitable jurisdiction which we are exercising is not intended for the enforcement of any technicalities. The council had been constituted by the Principal and it consisted of five members of the staff. We do not see what difference it could have made to the petitioner had the finding with respect to his guilt or the punishment been awarded by a council which technically had been constituted in accordance with rule 9.

7. The same equitable considerations stand in the way of the second ground of the petitioner. He says he was not given a proper opportunity to show cause but he admits that he partici pated in the fight. When we look at the report of the Committee, we find that the only ground on which they had proceeded is that the petitioner in fact took part in the, fight. The petitioner's grievance is that be was only asked some questions as to the participation of Mr. Abdus Salam, but it is not his case that even before the principal he was denying his own participation in the fight. We do not see, therefore, why he should have been put any question as to whether he was guilty or not and, in view of his admission, we do not see how he has been pre judiced by the fact that an opportunity to show cause was not granted. In fact on account of his admission there was no need of any enquiry.

8. In view of what we have said above, we see no force in this writ petition, but there is one thing we want to point out. It is admitted on behalf of the respondent that Muhammad Afzal, who was as much to blame as the petitioner, was not awarded any punishment because his guardian and he himself gave an undertaking that he will not misbehave in future. In the case of the petitioner it is said that his guardian did give an under taking but that the undertaking produced on behalf of the petitioner was not signed by him and it was not as good an undertaking as was required. So, it is clear that the respondent regarded the case as one where on the execution of an undertaking he would be prepared to drop the matter altogether. Under the circumstances, it is a matter for consideration of the college authorities as to whether they will not remit the punishment awarded to the petitioner in part. The petitioner has expressed his readiness to give an undertaking, but we find that now there is another authority, which is concerned in this matter, that is, the Board of Secondary Education, and it is not possible for us to do anything for the petitioner in this writ petition. This petition is dismissed without any orders as to costs.

K.B.A. Petition dismissed.

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