ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

 

C.P. No. D-1505 of 2013

Date

Order with signature of Judge

 

Present: Mr.Justice Muhammad Ali Mazhar.

                                            Mr.Justice Farooq Ali Channa 

 

Muhammad Hussain & another _______________  Petitioners 

 

Versus

 

Province of Sindh & others___________________Respondents

 

 For Katcha Peshi.

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10.09.2013.

       

Mr. Javed Iqbal Barqi, Advocate for petitioners.

Syed Masroor Ahmed Alvi, Advocate for respondent No.2.

Mr. Manzoor Ali, Advocate for respondent No.3.

Mr. Muhammad Waseem Sammo, A.A.G.

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Muhammad Ali Mazhar J. The petitioners have brought this Constitution Petition for seeking following relief(s):

 

“It is very humbly and respectfully prayed to this Honourable Court that this Honourable Court may kindly pass an order directing the respondent No.2 to immediately issue Provisional Admit Cards to the students of respondent No.3 and allow the children/students to appear in the examination of Class-IX & X for the year 2013 and also arrange date for the papers which had already been taken.

 

It is further prayed that this Honourable Court kindly be pleased to direct all the respondents to coordinate with each other in accordance with law so the such situation may be avoided in future.”

2. The brief facts of the case are that the petitioners along with other so many students are studying in Bright Public School, Singo Lane, Lyari. All the students deposited their annual examination fee and submitted their forms to the respondent No.3 for onward submission to the respondent No.2. On 6th April, 2013, it revealed that respondent No.3 failed to submit the examination forms in the office of respondent No.2 and in consequence thereof admit cards for annual examination could not be issued to the students of respondent No.3.

 

3. The notice of this petition was issued to the respondents. Respondent No.3 submitted his comments in which it is stated that he hired services of one Abdul Karim who was deputed to submit forms of the students along with their registration and examination fee in the Board of Secondary Education Karachi but he misappropriated the entire fee amount and absconded. On 23rd April, 2013,  F.I.R. No. 35/2013 against him was also lodged at P.S. Chakiwara under Section 406 P.P.C. At present, the accused Abdul Karim is on bail. The principal of Bright Public School, Mr. Rizwan Ghulam Nabi is present along with his counsel and he has shown his full agreement and willingness that if his students are allowed to participate in the supplementary examination, he will deposit the entire examination fee and forms of the students from school funds.

 

4. We have also examined the earlier orders passed by this Court. The order dated 12th April, 2013 passed by another learned Division Bench shows that the Board was directed to consider all such students as a special case for the forthcoming supplementary examination and the matter was adjourned with direction to assist the learned counsel on  the next date. The order dated 23rd August, 2013 shows that another learned Division Bench of this Court directed the petitioners to submit complete list of students for further consideration. In pursuance of said order, on 30th August, 2013, the learned counsel for the petitioners filed two lists of students along with a statements i.e one for Class-X, girls students in which 44 students are shown while another list for the Class-X shows 35 boys students which makes total 79 numbers of students. Since the matter is of an urgent nature, and last date of submission of form is 19.9.2013, hence all learned counsel agreed that petition may be heard today and disposed of at katcha peshi stage.

 

5. The learned counsel for the petitioners argued that all students paid the examination fee and deposited the forms but the amount was misappropriated. It was further contended that under the rules, the board may allow the students to appear in the supplementary examination if for some reasons they could not appear in the annual examination. It was further averred that if the students are not accommodated they will be seriously prejudiced and not only they will suffer loss of one year but their future will be also on stake.

 

6. The learned counsel for the respondent No.2 argued that Chapter-XI of the Calendar of the Board of Secondary Education Karachi, Volume-III (Examination Rules & Procedures) pertains to the supplementary examination. He further pointed out Rule-2 which permits the appearance in the supplementary examination only in four circumstances. He also argued that the petitioners are at fault, as the last date of submission of enrolment forms was 31st August, 2013 whereas last date for submission of examination form was 31st January, 2013 and the board of Secondary Education Karachi also issued press notification dated 3rd December, 2012 for the submission of Class-X forms which was in fact an extension of date for submission of examination forms up to 8th March, 2013. He further argued that students were denied the appearance in the annual examination due to negligent and reckless conduct of the Respondent No.3 for which the Board cannot be blamed and if any indulgence is shown to the petitioners, it will result in opening flood gate to litigation by other students and will create a precedent.

 

7. We have carefully gone through the Chapter-XI of the Calendar of the Board of Secondary Education Karachi, Volume-III (Examination Rules & Procedures). In our view in order to meet any exigency and as a special circumstance, the mandate has been conferred upon the Board or to the Chairman in anticipation of Board’s approval which can be exercised to cater the force of circumstances. For ready reference, Sub-Rule-IV of Rule-2 is reproduced as under:-

 

 

“All such candidates, who though not confirming to the conditions set out above are specially permitted by the Board or by the Chairman in anticipation of Board’s approval.”

 

 

 

8. Since the person appointed by the respondent No.3 for onward submission of fee and forms has misappropriated the fees amount and it is also an admitted fact that all the students have paid their fee therefore in the larger public interest and to save at least one year of the students for which they have no fault by their own it would be appropriate to allow the students to appear in the supplementary examination on their own will as according to the learned counsel for the petitioners at this stage this is the only appropriate remedy which can be availed by the students otherwise they will have to wait for the next annual examination by which they will lose at least one year of their academic career.  

 

9. The function of the court is to do substantial justice between the parties keeping aside the intricacies and or technicalities. In the case in hand, the bone of contention is  whether the board should exercise their discretionary powers in favour of students on the backing of Sub-Rule (iv) or not?. The discretionary powers are given under the law to exercise it fairly, justly and to advance the cause of justice. In the judgment reported in 1993 PLC 673, the honorable supreme court quoted the words of Scar man L.J that “excessive use of lawful power is itself unlawful”. Drawing a strength from the above quotation, we feel no hesitation to hold it conversely that non exercise of discretionary powers in a legitimate cases which require expediency in favour of subject or withholding the such discretionary powers  without any rhyme or reason will tantamount to repudiation and negation of powers conferred upon an authority to meet a particular situation which was beyond the control of party seeking relief through the discretionary powers. Nothing has been said by the respondent No.2 substantial in their reply as to why the petitioner may not be allowed to sit in the supplementary examination except that it will open a flood gate to litigation by other students which is not a satisfactory reply in our view. In the case in hand, the parents of large numbers of students paid/deposited examination fee with forms with the firm hope and assurance that their children will appear in the examination but it is quite unfortunate that their amount was misappropriated by the employee of school. On the face of it, the students cannot be penalized and even if the person is prosecuted or punished, their loss of one year academic career cannot be compensated or returned back to them. The Sub-rule (iv) is in fact providing an ample space to accommodate an untoward situation and the circumstances relating to force majeure as in this case also, the things were beyond the control of students or their parents. At the same time we are also mindful and fully cognizant to the fact that the powers provided under  Rule-iv are meant to apply only in the special circumstances and therefore if any order is passed allowing the petitioners or other students of the respondent No.3 to appear in the supplementary examination, this will not be treated as precedent and in future, each case will be decided on its own facts. Though we are conscious of the fact that before us there are only two petitioners but in the previous order, the learned bench of this court has already called upon the petitioners to submit a complete list which they have submitted duly certified by the respondent No.3. Since the petitioners have claimed benefit of Sub-rule (iv) for appearance of their son and daughter in the supplementary examination, therefore, we are of the firm view that any order or directions passed by us in this petition will be treated directions in rem to an extent of the lists of student submitted by the petitioners and they will also be equally benefited if they want to appear in the examination .

  

10. In the wake of above discussion, this petition is disposed of with the directions to the respondent No.2 &  5 to consider case of the students of Bright Public School, Singo Lane, Lyari sympathetically and the Chairman and the Board after examining credentials will allow the students mentioned in both the lists to appear in the supplementary examination for the year 2013 keeping in view Sub-rule-iv, of Rule 2 of Chapter-XI of the Calendar of the Board of Secondary Education Karachi, Volume-III (Examination Rules & Procedures). The respondent No.3 will collect the supplementary forms within three days from the Board office and within next four days he will deposit the forms in the Board office along with requisite documents and examination fee including the late fee if any. The compliance report shall be submitted by the respondent No.2 and 3 through Member Inspection Team-II of this court within ten days without any fail.

                                                                        Judge

Judge