Malik Farman Ullah Khan Vs The Controlling Authority, BISE etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

lJud ic ial I)cpartmcntl

W.l' No.34E-1112023

Malik Farman Ullah Khan Vs Thc Controlling Authority, lllSE ctc

.IUIX;MENT

l)atcol'hcaring: 3_9.052_02J.

I;or I'ctitioncr(s): I)ir lnam Ullah Shah Advocatc l;or rcspondcnt(s) ln Motion

DR. KHURSHID IOBAL,./.--- Owncd and managcd by thc pctitioncr, I) & K Ashral School & Collcgc ls irnparting cducation upto Class-Xll in North Waziristan district. Among othcrs, thc prolbrma rcspondcnts arc studying in it. In 2019, thc stakcholdcrs o[thc institutc rcqucstcd thc rcsporrdcnts to constitulc thcir collcgc as thc ccntrc ol'cxamination lor its studcnts. 'l'hc requcst was acccdcd to. ln 2021, thc rcspondcnts wcrc again lcqucstcd lilr thc pLrlposc, but this tirnc it could not bc so constitr.rtcd. ln thc currcnt acadcmic scssion, thc rcspondcnts wcrc yct again approachcd lbr thc purposc.

Ncvcflhclcss, thc rcqucst was allcgcdly turncd down without any justiciablc rcason. 'l'his cornpcllcd thc

pctitioncr 10 prcss into scrvicc thc jurisdiction of this Court undcr Aniclc 199 olthc Constitution.

2.Wc havc hcard Pir Inam tjllah Shah Advocatc for thc pctitioncr and scanncd through thc rccord.

3.'l'hc mattcr with rcgard to constitution of a placc as a centrc of cxamination is govcrncd by I{ulc-3 ol Chaptcr-Xll ol' thc Itulcs madc undcr thc Khybcr I)akhtunkhwa lloard ol lntcrmcdiatc & Sccondary liducation Ordinancc, 1990. It vcsts discrction in thc Chairman ol thc lloard to constitutc a placc as a ccntrc of cxamination undcr spccial circumstanccs on such tcrms as may bc dctcrmincd by him. Similarly, thc mattcr with rcgard to thc changc of ccntrc olcxamination is rcgulatcd by Chaptcr-XlV of thc Iiulcs ibrri. 'l'his chaptcr providcs lor thc circumstanccs and conditions to bc satisficd for thc changc ol'ccntrc ol'cxamination. Rulc-2 thcrcof vcsts discrction in thc Controllcr of llxaminations to allow changc of ccntrc with thc approval of thc Chairman in cxccptional circumstanccs. Ilowcvcr, no rcal hardship or cxccptional circumstancc could bc pointcd out by thc lcarncd counscl rcprcscnting thc pctitioncr, to pcrsuadc us to indulgc in thc mattcr. Morcovcr, Itulc-3 of this Chaptcr commands thal an application [irr a changc of ccntrc shall bc madc on a prcscribcd lorm which shall bc

submittcd through thc pcrson signing thc admission lorm Ncvcrthclcss, thc applications datcd 14.04.2023 and 17.05.2023 wcrc madc on a plain papcr and not on thc prcscribcd [orm. 'l'hc said applications wcrc movcd to thc Chairman ol thc lloard by thc parcnts ol thc studcnts conccrncd. 'l'hosc wcrc not submittcd through thc pcrson having signcd thc admission lorms as rcquircd undcr thc rulcs. At thc tir-nc of- nraking thc applications lor thc changc / rcstoration of ccntrc of cxamination, I)cgrcc Collcgc Mirali had alrcady bccn constituLcd as a ccntrc of cxamination lor thc studcnts ol thc collcgc. Ilulc-6 makcs it obligatory for cach application to bc accompanicd by a fcc o[ Its. 1000/-. 'l'hc rcquircmcnt of this rulc, too, has not bccn satisllcd. []csidcs, I{ulc-7 providos that thc Controllcr shall havc thc powcr to rcjcct an application lbr a changc ol ccntrc without assigning any rcason for his ordcrs. It is, thus, clcar that constitution of a placc as a ccntrc of cxanrination is thc privilcgc of thc Iloard, which cannot bc claimcd as of right. 'l'hc collcgc in qucstion is a privatc institutc. lts cxarnination hall has bccn shilicd to thc (lovcrnmcnt l)cgrcc Collcgc in thc sarnc district to cnsurc transparcncy in conducting thc cxamination.

4.It is worth noting that suitability ol a placc lbr

constitution as a ccntrc ol- cxarninalion is purcly intcrnal mattcr ol thc l]oard which has absolutc right of dccision in such mattcr. 'l'his Cou( in thc cxcrcisc of its cxtraordinary jurisdiction would not substitutc its findings with thc onc adoptcd by thc Iloard aftcr making asscssmcnt of thc ground rcalitics. In thc casc titlcd as "Khvber Medical Universi tv and olhers Vs Aimal Khan and olhers" 2022 S me Courl 92 , it has bccn hcld that:

4.It has becn time and again hcld by this Court that courts must sparingly intcrfcrc in thc intcrnal govcrnancc and affairs of cducational institutions. It is simply prudcnt that thc courts kecp thcir hands off educational mattcrs and avoid disl<ldging dccisions of thc univcrsity authoritics, who posscss tcchnical cxpcrtisc and cxpcriencc of actual day to day workings of thc educational institutions. Evcry univcrsity has thc right to set out its disciplinary and othcr policics in accordancc with law, and unlcss any such policy offcnds the fundamcntal rights of thc studcnts or violatcs any law, intcrfcrcncc by thc courts rcsults in disrupting thc smooth functioning and govcrnancc of thc univcrsity. It is, thcrcforc, bcst to lcave thc disciplinary, administrativc and policy mattcrs of thc univcrsitics or cducational institutions to thc profcssional expcrtisc of thc

pcoplc running thcm, unlcss of coursc thcrc is a violation ofany of thc fundamcntal rights or any law.

5.This sclf-rcstraint by the courts in matter of cducational institutions is bascd on thc wisdom that acadcmic frccdom and institutional auton<lmy of thc univcrsitics must bc protcctcd and safcguardcd.

Acadcmic frccdom is not mcrcly libcrty from rcstraints on thought, cxprcssion, and association in thc univcrsity, but also that thc univcrsity should havc thc frccdom to makc dccisions about thc cducational mattcrs including disciplinary mattcrs. As "it is thc busincss of a univcrsity to providc that atmosphcrc which is most conducivc to spcculation, cxperimcnt and crcation. lt is an atmosphcrc in which thcrc prcvail 'thc four csscntial frccdoms' of a university; who may tcach, what may hc taught, how it shall bc taught and who may bc admittcd to study.

5 Although, thc lacts of thc abovc citcd casc pcrtain to an issuc ariscn in a lJnivcrsity, but thc principlc laid down thcrcin is that thc Court should no1 intcrl-crc in thc intcrnal govcrnancc ol' an cducational institution. 'l'his principlc is attractcd to thc l-acts and circurnstanccs ol thc casc in hand. 'l'hc constitution of an cxamination hall is thc lunction of l"hc rcspondcnts. Wc arc of thc vicw that thc conslitution of cxamination hall is thc discrction of

thc rcspondcnts, which thcy should havc a right to cxcrcisc in thc manncr as warrantcd, unlcss it inlringcs on thc lundarncntal rights ol'thc studcnts. It has not bcen pinpointcd as to what prejudicc has bccn causcd to thc studcnts by not constituting thc collcgc as thc ccntrc of cxamination.

6.In thc abovc backdrop ol thc matter, wc arc fully convinccd that thc instant writ pctition is without any lorcc. It is, thcrclbrc, dismisscd in limine.

A n nou nccd

(Ght(oor /amun)

.I DGE

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(D.t ) llon'hle Mr, Juslice l"owl Suhhu llou'hle Mt Juttlice l)r. Khurshid lqhol