ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD

 

C.P. No. D- 1649 of 2010                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             

                                                                  

DATE        ORDER WITH SIGNATURE OF JUDGE

                            

Present:       Mr. Justice Sajjad Ali Shah

                                       Mr. Justice Muhammad Ali Mazhar.      

 

 

For Katcha Peshi.

For hearing of MA No. 6912/10

For hearing of MA No. 7739/10

For hearing of MA No. 930/11

                                                                            

Date of hearing: 29.3.2011

                            

                              

Petitioner:             Miss. Javaria D/O Muhammad Qasim Lashari.

 

Respondent          Mehran University of Engineering and Technology Jamshoro.

 

Mr. Irfan Ahmed Qureshi, Advocate for the Petitioner

 

Mr. Jhamat Jethanand, Advocate for the Respondent

 

=====

 

 

Muhammad Ali Mazhar, J. The petitioner has preferred this Constitution Petition with the prayer that a writ be issued against the respondent in the following terms:

 

1.                 To make an order to the respondent to allow the petitioner to sit in the examination of Sixth Term (third year) commencing from 25th November 2010 because the average percentage of attendance of third year (5th and 6th terms) is 65%.

 

2.                 To make an order to Respondent to allow the petitioner to sit in the sixth term examination of third year commencing from 25th November 2010 as the petitioner has acquired 65% average attendance plus 10% grace attendance making the total of 75% of average attendance of 5th and 6th terms of 3rd year.

 

3.                 To declare that the petitioner by virtue of para 17 (1) of the prospectus stands promoted to Fourth year and she cannot be prevented from promotion to fourth year (7th term) which is likely to commence from January 2011.

 

4.                 To declare that no student can be termed back on account of short of attendance because no such provision of term back exists in the Regulations in vogue.

 

5.                 To declare that Statutes, Rules and Regulations are not to be treated as “Controlled Documents” and everybody should have access to them and they should be got published in official gazette of Sindh Government.

 

6.                 Any other relief/cost.

 

 

2. The brief facts leading to the controversy involved in this case are that the petitioner is student of 3rd year, Bachelor of Engineering (B.E). She was admitted in the respondent University in the year 2008 under the self finance scheme. The respondent is governed and regulated by the Mehran University of Engineering and Technology Act 1997.

 

3. The petitioner has cleared all the heads of first term and second term. In addition thereto, the petitioner has given supplementary examination for the second year (4th term) and annual examination of third year (5th Term) but the result of both these examination are still awaited. She was promoted in the third year (6th term) and attended the classes but due to her sickness, she has missed some classes and her attendance has been worked out at 54%. It is further alleged that without issuing any show cause notice, the petitioner has been denied the examination form for the sixth term examination which was likely to be commenced from 25.11.2010. (N.B. The petition was filed in this court on 24th November 2010, one day earlier to the date of examination).

 

4. The petitioner has further stated that it has been a practice of respondent that any student who is refused to appear in the examination due to short attendance is reverted back to the junior batch and compelled to sit idle and after sixth months when junior batch is promoted, he is allowed to repeat the same term and in this way, he is thrown back at least for one year which is nowhere provided either in the Act or Regulations.

 

5. When this petition was filed, the crux of the matter was that if the petitioner is not allowed to appear in the ensuing term, then she will be virtually expelled for complete one year subject to fulfillment of other conditions including attendance in the next term which will commence from July 2011.

 

6. On notice, the respondent filed its comments in which it was inter alia contended that the petitioner had knowledge of her 54% attendance on 10.11.2010 but she has deliberately filed this petition only one day prior to her examination. It was further averred that the regulations framed in the year 1978 were amended/repealed on 31.5.2003. The petitioner belongs to 2008 batch which is governed by the respondent’s prospectus 2007-08. The prospectus for the year 2010-11, though not applicable to the petitioner’s case, but conditions referred to at page 111 of 2010-11 prospectus are same to the prospectus issued for the year 2007-08. The regulations pertaining to year 1978 were repealed w.e.f 31.5.2003, therefore, the student having 50% attendance is not eligible to appear in the examination. It was further stated in the comments that there is nothing on record to show the sickness of the petitioner. The petitioner will only be eligible to attend the classes of 6th term with 2009 batch students in July 2011. The petitioner has neither been ousted nor expelled and from July 2011, she will be entitled to attend the classes. The respondent has further submitted in the comments that each term has its own examination and 75% attendance is mandatory but in this case, the petitioner is not short of negligible or meager percentage of the attendance, therefore, debarring the petitioner is neither unreasonable nor the violation of the prospectus. Much emphasis has been made that in the similar circumstances, the action of respondent debarring the student having 61% attendance was upheld by this court in C.P. No. 523 of 2000.

 

7. The learned counsel for the petitioner argued that the petitioner has always remained punctual up to 5th term. However, in the 6th term, she was severally sick, therefore, she could not attend the classes punctually. She was required to secure 65% attendance with grace of 10% attendance but due to aforesaid unavoidable circumstances, she could only secure 54% attendance. He further argued that due to her illness, the petitioner is entitled for the benefit. Debarring the petitioner is a harsh and major penalty. The learned counsel further averred that the petitioner in the 5th term secured 75% attendance and in the 6th term, she has 54% attendance, therefore, an average of attendance of the aforesaid terms comes to 64%, therefore, with the benefit of fraction, the attendance comes to 65% and after allowing the rebate/condonation of 10%, the average attendance of petitioner comes to 75%, therefore by all means she is entitled to attend the examination.

 

8. The learned counsel relied upon Regulation 10 of Mehran University of Engineering and Technology Admissions and Teaching of Student Regulation 1978 which provides that in order to qualify for the final examination of the term, the student must attend at least 75% of the classes in each course and secure satisfactory grade in sessional work of each course, failing which he shall not be allowed to sit in the final term test. However, for acceptance of examination form, the student must have secured 50% of the attendance. The learned counsel further argued that though the Regulations pertaining to the year 1978 were stood amended/repealed w.e.f 31.5.2003 but in the successive Regulations 2003, it is nowhere mentioned that by framing the Regulations in the year 2003, the Regulations 1978 shall deem to have been repealed, therefore, both regulations are applicable simultaneously and very much are in vogue and for the purposes of petitioner’s case, 1978 Regulations will apply.

 

9. According to the learned counsel, Regulation 11 of Regulations 2003 is applicable only to the students who having 65% attendance but less than 75% attendance and they are eligible for 10% condonation by Pro-Vice Chancellor on the basis of an application to be scrutinized by Director/Chairman concerned and routed through respective Dean of Faculty. Learned counsel further argued that the facts of C.P. No. 523 of 2000 are quite distinguishable, therefore, the order passed in the case of Farhan Karim Maher has no relevancy. In support of his arguments, the learned counsel for the petitioner relied upon following case law.

 

(1) 2011 CLC 1559 (Miss. Sehar Sultan v. Comsats Institution of Information Technology Lahore). In this Intra Court Appeal, the learned divisional bench of Lahore High Court has held that educational institution did not serve any show cause notice or communicated the effect of lecture shortage/result of failure to appellant until she gained knowledge on her own after she had completed the sixth semester. Educational institution even did not intimate to the appellant as to her ineligibility to join the next semester resultantly she continued her education till completion of all the eight semesters and the final project. Appellant in circumstances, could not be penalized for the irregularity committed by the institution which impliedly consented to continuance of appellant’s further education. No order affecting the rights of any person could be passed without affording an opportunity of hearing to such party.

 

(2) 1993 CLC 1675 (Zubair Ishtiaq Qureshi v. The Chairman of Academic Council and Principal of Sindh Medical Karachi). In this case, the learned divisional bench of this Court considered Regulation (4) of Pakistan Medical and Dental Council Regulations 1965. The learned divisional bench held that regulation 4 (1) note (ii) would be applicable only to those cases where said four chances had either been fully but unsuccessfully availed of or had remained un-availed in circumstances involving voluntary failure or design inaction on the part of the student. Where concerned student was able to show that he was demonstrably rendered unfit due to an unavoidable and restricting sickness or prevented by other unavoidable just cause beyond his control from availing of a chance he could not be deemed to have failed in availing one of such four chances.

 

(3) 2001 MLD 1252 (Miss. Karima v. University of Punjab). In this case, the learned bench of Lahore High Court held that the students who have availed another chance under the interim order of the court and have admittedly passed the subject which they could not earlier clear in four chances, we are not prepared to allow the petitioners to be thrown out of the study even though they have passed the examination in violation of the regulation. It is well settled that an act of the court will not prejudice a litigant. The  honourable supreme court of Pakistan in a case reported in 1997 SCMR 1845 directed the petitioner by an interim order to be admitted in MBBS Course and by the time of final hearing of the case, the petitioner had reached to the final year MBBS. The court, therefore, held that it could not allow the petitioner to be deprived of his brilliant medical career. In these circumstances we dispose of all the said writ petitions holding that although the regulation in question is valid but the petitioners have cleared the first professional MBBS examination under interim order of this Court shall continue their studies and their such clearance shall be deemed to be proper and legal and will not adversely affect their continuous educational career.

 

(4) PLD 1977 Lahore 1029 (Controller of Examination Board of Intermediate and Secondary Education Lahore v. Waqar Hussain Hashmi). In this revision application, the learned single judge of Lahore High Court discussed the calendar of board of intermediate and secondary education Lahore Rule (iv) (x) which pertained to the hardship rule. The court held that candidate for intermediate examination after sitting in all theory papers falling ill and therefore, failing to take practical of science subject. Rule (iv) (x) wide enough to cover such cases of illness and candidate entitled to decree allowing him to appear in practical in next examination.

 

(5) 1997 CLC 596 (Shaukat Hussain v. Syed Jarar Hyder). In this matter, the learned Single Judge of Lahore High Court while considering the Rules of Board of Intermediate and Secondary Education Bahawalpur held that once the matter that the petitioner was seriously ill came to the knowledge of Headmaster of the institution, he could not strike his name from the roll of the candidate as there was no deliberate negligence on the part of the petitioner and if at all he was of the view that percentage of the attendance was short then according to the rules he should have moved to the board for withdrawal of the admission form. If he was convinced from the very beginning that the attendance of the petitioner was short why he omit to write the word “provisionally” on the admission form submitted by him.

 

 

10. The learned counsel for the respondent argued that the petitioner had full knowledge that she had secured 54% attendance on 10.11.2010 and in order to gain undue advantage, she had filed this petition only one day prior to the date of examination which shows her mala fide intention. The learned counsel further averred that there is nothing available on record which may substantiate the plea of sickness advanced by the petitioner. The attendance eligibility list was affixed on the notice board but the petitioner never filed any objection nor approached the competent authority for the correctness of the list if it was found incorrect by her.

 

11. The learned counsel further argued that the students having below 75% attendance are not eligible for appearing in the examination. According to learned counsel, neither the petitioner has been ousted nor expelled but she was simply refused to appear in the examination due to the lack of required percentage of attendance and the petitioner will be eligible to attend the classes of sixth term with 2009 batch in July 2011. The learned counsel further argued that the criteria of mandatory requirement of 75% attendance was incorporated in the regulation to maintain the high standard of education and for the well being and proper grooming of students and the respondent implements the regulations fairly without any discrimination with any student.

 

12. The learned counsel invited the attention of this court to a list along with a statement dated 29.11.2010, presented in Court on 1.12.2010. The attached list duly verified by the In charge, Director Management Information System of the respondent which shows that at least 111 students were not allowed to appear in the examination on account of less attendance (from 53% to 64%) in last three sessions. Separate sheets relevant to different batches along with different terms have also been attached with the statement showing the term wise position in which various students were not allowed to appear in the examination due to deficit/shortfall in the attendance. The learned counsel further argued that since the petitioner belongs to 2008 batch therefore, for all intent and purposes her case is governed by the prospectus 2007-08. So far as the applicability of Regulation 1978 is concerned, the learned counsel emphatically argued that 1978 Regulations were amended/repealed on 31.5.2003. The learned counsel finally argued that no injustice was done with the petitioner and the respondents have always enforced and implemented the conditions mentioned in the regulations and the relevant prospectus across the board without any discrimination and each and every student is bound to follow the settled norms and standard and cannot claim any immunity or relaxation beyond its scope. In support of his argument, the learned counsel relied upon the following case law:-

 

(1) 2000 SCMR 1222 (Ali Yousaf and another v. Chairman of Academic Council and Principal Dow Medical College, Karachi). In this matter, the honourable supreme court while referring to another judgment reported in 1994 SCMR 532 in the case of Akhtar Ali v. Principal Quaid-e-Azam Medical College Bahawalpur held that right to seek admission in an educational institution and to continue studies therein is always subject to the rules of discipline prescribed by the institution and therefore, a student who intends to pursue his studies in the institution is bound by such rules. The above quoted rule in our view does not infringe upon the right of student to pursue his studies in the medical college. On the contrary it ensures arrest of falling standards of education in such institution. In so far as the contention that the petitioner appeared in the supplementary examination under the interim orders passed by the High Court in his constitution petition and passed the same therefore, he is entitled to continue his studies. It may be mentioned here that interim orders allowing the petitioner to appear in the examination, which was to be held in January 1999 was subject to the condition that the petitioner may appear in the examination at his own risk and subject to the final decision of the case on merits. Since the high court finally dismissed the petition on merits, therefore, the question that in the last attempt made in January 1999 under interim orders of the court the petitioner passed the examination, would be of no avail.

 

 

(2) Unreported Judgment in C.P No. D-523 of 2000 (Farhan Karim Mahar v. Mehran University of Engineering and Technology Jamshoro). In this matter, the learned divisional bench of this court in the similar circumstances in which the respondent was also same held that it is not the case of the petitioner that during this period at any time he was restrained by the respondents from attending the classes but despite that the petitioner opted to attend classes of fourth term only from 12.9.2000 and as a result thereof on conclusion of classes on 21.2.2000, he could only manage 61% attendance which is well short of required minimum 75% for eligibility to appear in the examination. In view of this factual position the plea of the petitioner that due to previous litigation and dispute with the respondent he could not attend the classes from 5.6.2000 has no force. We are also not impressed by the submissions that this is a case where the petitioner is entitled for a lenient view in the matter so that his career is not ruined. In our view the stand taken by the respondents is neither arbitrary or discriminatory nor in any manner the same could be termed as harsh, unjust, un-equitable or improper. In such circumstances, exercise of discretion in favour of the petitioner will amount to unnecessary interference in the working of an educational institution and therefore, we are not inclined to do so. Finally the learned divisional bench of this court dismissed the petition in limine.

 

 

13. After hearing the arguments of the learned counsel and examining the relevant regulations and prospectus, we are of the firm view that though in the Mehran University of Engineering and Technology Admissions and Teaching of Students Regulation 1978, it is clearly provided in Regulation 10 that in order to qualify for the final examination of the term the student must attend at least 75% of classes in each course and secure satisfactory grade in sessional work of each course failing which he shall not be allowed to sit in the final term test. However, for acceptance of examination form, the student must have secured 50% of attendance. It is worthwhile to mention here that in the year 2003, the respondent framed the regulations regarding the courses of studies under term system and examinations under external examiners system for the degree of Bachelor of Engineer (B.E), Bachelor of City and Regional Planning (B.C.R.P) and Bachelor of Architecture (B.Arch) as provided under Section 47 (1) (a) of Mehran University of Engineering and Technology Act 1977. These regulations were amended by Academic Council vide Resolution No. 55.2 (f) dated 31st May 2003 and approved by the Syndicate vide Resolution No. 90.8 (ii) dated 6th December 2003. In the short title, it is clearly provided that these  Regulations may be called Mehran University of Engineering & Technology, Bachelor of Engineering (B.E), Bachelor of Architecture (B.Arch.) and Bachelor of City & Regional Planning (B.C.R.P) Degree Courses Regulations amended on 31st May 2003, repealing such Regulations framed by the University authorities or otherwise (if any).

 

14. The Regulation (9) of 2003 Regulations, pertains to the Term Requirements which provides the minimum requirement for each term course as under:-

 

“9.     Term Requirements- The minimum requirement for each Term course shall be as follows:-

 

(i)                                        Sessional Work consisting of class tests and laboratory work.

 

(ii)                                     75% attendance (minimum) and

 

(iii)                                   Appearance in Term Examination.”

 

 

15. The further clarification and explanation of attendance requirement is provided under Paragraph (11) of the Prospectus 2007-2008 for Bachelors Degree Program which reads as under:-

 

 

          “11.   ATTENDANCE REQUIREMENT

 

(i)                A student must have at least 75% average attendance so as to be eligible to appear in the Term Examination.

 

(ii)             In genuine cases, maximum 10% condonation in attendance shall be the discretionary powers of the Vice-Chancellor on the basis of an application to be scrutinized by Director/Chairman concerned and routed through respective Dean of Faculty.

 

(iii)           The eligibility attendance Theory/Practical for the admitted students to First Term of First Year only shall be calculated from the date of admission.”

 

 

16. Though the whole crux of the petition is that the petitioner has only secured 54% attendance in the sixth term and reasons for the short of attendance in the sixth term is claimed to be her often sickness but it is highly astonishing to note that not a single medical certificate has been attached with the petition to substantiate the claim. The respondent in its parawise comments took a specific plea that there is nothing on record to show the alleged sickness of the petitioner for missing the classes. However, first time on 19th March 2011, the petitioner has produced her medical certificates along with affidavit in rejoinder. The petitioner has attached (05) Medical Certificates dated 27.7.2010, 31.8.2010, 24.9.2010, 29.10.2010 & 5.11.2010, respectively in which it is mentioned that the  petitioner remained under treatment of Dr. Sohail A. Almani, being a patient of Acute Pholonephritis. It is significant to note that in all five medical certificates, the doctor had advised the complete bed rest for 15 days only. According to the website “www.nmihi.com/i/pyelonephritis”, Acute pyelonephritis is one of the most common renal diseases. It is an inflammation of the kidney characterized by the sudden onset (within one to two days) of fever and chills, side pain, and frequent, painful urination. Acute pyelonephritis results most commonly from the spread of a naturally occurring lower urinary tract or bladder infection up through the ureters to the kidneys.

 

17. Along with the affidavit in rejoinder, the petitioner has also attached a letter dated 15th November 2010 which was written by her to the Chairman, T.L Department of the respondent. Though this letter does not show any acknowledgement or the manner of delivery but in this very letter, the petitioner herself mentioned as under:-

 

“To the best of my knowledge and belief and as per personal diary maintained by me during these days, I missed about 102 classes (subject to verification through attendance sheets). In support of my version that I have remained sick, I produced medical certificates. I request for condonation of attendance of my missed classes on medical ground”.

 

 

In paragraph (6) of the affidavit in rejoinder, the petitioner has further highlighted through a table that she was found absent in 34 classes though she claims to have attended the same and she also refers to 32 more classes which were missed due to some other reasons. In our view,  this controversy is entirety revolving around the questions of facts and needed elaborate enquiry, such exercise could not be undertaken by this court under Art.199 of the Constitution.

 

18. It is clear beyond any shadow of doubt which is also an admitted fact that the petitioner was refused to appear in the examination due to lack of required attendance and the petitioner also admitted that she had missed 102 classes and secured only 54% attendance in the sixth term as against 75% requirement. According to paragraph (11) of the Prospectus 2007-08, in the genuine cases maximum 10% condonation may be allowed under the discretionary powers of the Vice Chancellor on the basis of an application to be scrutinized by Director/Chairman concerned and routed through respective Dean of Faculty.

 

19. The case law relied upon by the learned counsel for the petitioner are distinguishable and not helpful to the facts and circumstances of the case in hand. In the first case reported in 2011 CLC 559, the education institution did not serve any show cause notice or communicated the effect of lecture shortage/result of failure to appellant until she gained knowledge on her own after she had completed the sixth semester. The institution even did not intimate ineligibility to join the next semester, resultantly she continued her education till completion of all the eighth semester and the final project. The court in this case held that the appellant could not be penalized by the irregularity committed by the institution which impliedly consented to the continuance of appellant’s further education. In the case reported in 1993 CLC 1675, no question of short of attendance was involved but the case before the court was to consider the effect of failure on the part of student to clear first professional MBBS examination in four chances availed or un-availed would cease to be eligible for further medical education. In another case reported in 2001 MLD 1252, the court while considering the judgment reported in 1997 SCMR 1845 in which the honourable supreme court directed the petitioner by an interim order to be admitted in MBBS course and by the time of final hearing of the case, the petitioner had reached to the final year MBBS, therefore, the court held that it could not allow the petitioner to be deprived of his brilliant medical career. In this case also the question of shortage in attendance was not involved but the petitioners had challenged the order of Principal declaring that they were not eligible to continue further studies as they had failed to pass their first professional MBBS examination in four chances. In another case reported in PLD 1977 Lahore 1029, again the facts are distinguishable as in this case the learned single judge in its revisional jurisdiction considered the hardship rules of board of intermediate and secondary education Lahore and held that rule (iv) (x) is wide enough to cover cases of illness and candidate entitled to decree allowing him to appear in practical in next examination. In the present case also the petitioner has not been ousted or expelled from the institution but it is clearly mentioned in the comments of the respondent that the petitioner will be eligible to attend the classes of sixth term with the 2009 batch in July 2011. In the last case reported in 1997 CLC 596, it was held that Head Master could not strike of petitioner’s name from the roll of candidates as there was no deliberate negligence on the petitioner’s part and if, at all, he was of the view that percentage of attendance was short then according to rules he should have moved board of secondary examination for withdrawal of petitioners admissions form if he was convinced that the attendance of petitioner was short. No such controversy was involved in that case relevant to the facts and circumstances of the case in hand as in the present case the entire controversy is roaming around the applicability and implementation of 2003 Regulations and prospectus 2007-08 of the respondent in which the minimum requirement of attendance percentage is mentioned along with the mechanism and modality to claim the certain ratio of condonation subject to the discretion of competent authority.

 

20. The case law relied upon by the learned counsel for the respondent are quite applicable and helpful for the just and proper decision of the matter. This court vide order dated 28.11.2000 passed in CP No. 523 of 2000 has already decided the similar controversy in case of same respondent and dismissed the petition with the firm finding that the student could only manage 61% attendance which is well short of required minimum 75% eligibility to appear in the examination. In the same judgment the learned divisional bench further held that the petitioner is not entitled for a lenient view in the matter as the stand taken by the respondent is neither arbitrary or discriminatory nor in any manner the same could be termed as harsh, unjust, un-equitable or improper and exercise of discretion in favour of the petitioner will amount to unnecessary interference in the working of an educational institution. In the next judgment reported in 2000 SCMR 1222, the honourable supreme court has held that the right to seek admission in an educational institution and to continue studies therein is always subject to the rules of discipline prescribed by the institution and therefore, student who intends to pursue his studies in the institution is bound by such rule.

 

21. The whys and wherefores lead us to a conclusion that Regulation 2003 repealed the earlier Regulations and according to 2003 Regulations, the condition of securing 75% attendance is mandatory however, a procedure and mechanism for seeking condonation is provided in the prospectus 2007-08 which provides that in genuine cases maximum 10% condonation in attendance shall be the discretionary powers of the Vice Chancellor on the basis of an application to be scrutinized by Director/Chairman concerned and routed through respective Dean of Faculty. These regulations and prospectus are applicable across the board. The petitioner has failed to demonstrate any unfair or discriminatory treatment with her which may require any interference of this court.

 

22. This petition had first time fixed in this court on 24.11.2010 on urgent motion and another learned divisional bench of this Court while issuing the notice to the respondent as well as AAG for 15.12.2010, directed the respondent to accept the examination form of the petitioner and allowed her to appear in the sixth term examination subject to the final outcome of this petition. Since the relevant regulations and prospectus mentioned supra do not allow any student to appear in the examination having below 75% attendance, therefore, the interim order passed by this Court does not create any valuable or vested right in favour of the petitioner, specially in the circumstances when in the interim order itself this court allowed the petitioner to appear in the examination subject to final outcome of this petition. Even otherwise in the similar circumstances, the honourable supreme court in its judgment reported in 2000 SCMR 1222 has already held that the petitioner was allowed to appear in the examination at his own risk and subject to the final decision of the case on merits. Since the high court finally dismissed the petition on merits, therefore, the question that in the last attempt made in January 1999 under the interim orders of the court the petitioner passed the examination would be of no avail.

 

22. The upshot of this discussion is that the petitioner has failed to make out any case on merits. Consequently, this constitution petition is dismissed along with pending applications.

 

Hyderabad

Dated. 5.5.2011                                                                       Judge

                                                         

                                                                   Judge