Muhammad Afaq Khan Vs Chairman BISE Kohat, etc

WDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

lJudicial l)cpartnrcntl

W.l' No.36l-1112023

Muhammad Afaq Khan Vs Chairman, IllSE, Kohat etc

.IUDGMENT

l)atc ol' hcaring: 3r.05.2023

Iror l)ctitioncr(s): Mr. Farhan Ullah (lran Advocatc lror rcspondcnt(s): In Motion

DR. KHURSHID IOBAL, J.--- Ilailing liom Lakki Marwat, thc pctitioncr (Shafiullah), alongwith his cldcr brothcr, is a studcnt ol' l;.Sc in Shaheen Children Academy & College of Sciences, I)istrict Karak. I lis annual cxamination is schcdulcd to commcncc from 03.06.2023.1Ic allcgcs kr havc choscn in cxaur lbrrn, his own collcgc as thc ccntrc lbr thc lbrthcorning cxamination. IIc says that hc was shockcd whcn camc to know that thc lloard has constitutcd Government Iligher Secondary Scfunl Jandari Karak as thc ccntrc o[ his cxamination. I Ic contcnds that his fathcr has a disputc ovcr a vchiclc with onc Qayyurr Khan, a rcsidcnt ol Jandari Karak. Ilcl'cn'ing to a daily cliary No. l5, datcd 28.05.2023, hc fu(hcr allcgcs that thc said pcrson poscs a

thrcat to his lilc whilc attcnding papcrs in thc cxamination hall so notillcd. Iror this rcason, his fathcr nrovcd an application to thc l]oard lor shilling thc notilicd ccntrc ol' cxamination to thc collcgc ol- thc pctitioncr, but in vain. 'l'his lcd to filing ol this pctition undcr Articlc 199 of thc Constitution lor dirccting thc rcspondcnls to changc thc ccnlrc o[ his cxamination in thc alorcsaid mannc[.

2.Wc havc hcard Mr. lrarhan ljllah (]ran Advocatc lor thc pctitioncr and scanncd through thc rccord

3.'l'hc rnattcr with rcgard to thc changc of ccntrc ol- cxamination is rcgulatcd by Chaptcr-XlV ol thc Ilulcs madc undcr thc Khybcr l)akhtunkhwa lloard o[ % lntcrmcdiatc & Sccondary lrducation Ordinancc, 1990.

lior thc sakc ol'quick rcl'crcncc, it is rcproduccd bclow:

I A candidatc rnay bc pcrrnittcd to changc thc cxanrination ccntlc undcr thc lbl lowi ng circurnstanccs:

il'thc candidatc or his lathcr or his guardian has bccn transfcrrcd. 'l'hc lact o[ translbr shall bc ccrtilicd by thc Ilcad ol' thc ofllcc in which thc candidatc or his guardian is cmploycd.

2.il'thc candidatc or his Iathcr or guardian changcs thc placc ol' busincss or shilis kr anothcr slation, this Iact shall bc ccrtiticd by a

- 'll

(lazcttcd Ol'llccr, not lowcr thc rank ol' a Magistratc II ('lass or by thc Ilcadnrastcr or principal who signcd thc adrnission Ibrrn.

J ilon account of ill hcalth thc candidatc is not ablc to procccd to thc ccntrc o[' cxamination allottcd to hirn. ln such cascs thc application shall bc accompanicd by a ccrtificatc signcd by a Ilcgistcrcd Mcdical I)ractitioncr.

2.In ordcr to avoid rcal hardships, thc Controllcr ol- lixaminations may in cxccptional cascs, not covcrcd by thcsc Ilulcs, allow changc o{'Ccntrc with thc approval ol' thc Chairrnan.

3.An application lilr a changc o l' ccntrc shall bc madc on a prcscribcd lirrm and shall bc submittcd through thc pcrson % signing thc adrnission lbnn. II'hc is not availablc, it should comc Lhrough a (lazcttcd Olllccr not bclow thc rank ol- a Magistratc II Class.

4.ln casc ol' mcn candidatcs; thc application must bc accompanicd by two copics o{' thc candidatc's photograph bcaring thc candidatc's signaturc in lull duly attcstcd on thc back by thc olficcr through whom thc admission lilrm was scnt.

5.An application lbr changc ol'ccntrc in all cascs l-4 shall ordinarily bc cntcrtaincd uph 30 days bclorc thc commcnccrncnt ol thc cxarnination.

6.liach application lbr changc ol' ccntrc shall bc accornpaniccl by a I'cc ol' Its. 1000/- which shall not bc rclundcd cvcn i l'thc changc ol'ccntrc is not availcd

ol'or is not allowcd

7.'l'hc Controllcr shall havc thc powcr to rcjcct an application lbr a changc of ccntrc without assign ing any rcason lbr his ordcrs.

4.'l'his chaptcr providcs lbr thc conditions to bc satisl'icd lor thc changc ol ccntrc of cxamination. Ilulc-2 r6rcl vcsts discrction in thc ('ontrollcr ol'Irxaminations to allow thc changc of ccntrc with thc approval of thc Chairman in cxccptional circumslanccs. 'l'o gct his casc covcrcd by ltulc 2 ibid, thc pctitioncr has mainly rclicd upon thc daily diary rclcrrcd to abovc. Without prcjudicc, thc pctitioncr may havc a rcal hardship casc. I lowcvcr, this rulc only pcrmits lor thc changc of a ccntrc ol cxarnination, whcrcas hc in csscncc sccks constitution o[' his collcgc as thc ccntrc ol'cxarnination. A distinction rxust bc drawn bctwccn 'changc ol' ccntrc ol cxarnination' and 'constitution ol'a placc as thc ccntrc of cxamination'. 'l'hc lormcr is govcmcd by Chaptcr-Xll, whilc thc lattcr by Chaptcr-XlV ol'thc ibid rulcs. A ccntrc ol cxamination can bc changcd lirr a studcnt lrom onc placc t.o anothcr, providcd thc latlcr is also a duly constitutcd ccntrc of cxarnination. Oonvcrscly, such ccnlrc cannot bc allowcd t<l bc changcd lion-r onc placc to anothcr, if thc lattcr is not so constitutcd at thc timc o[

such changc. In such circurrstanccs, sccking a clrangc would dcfinitcly amounl t<l sccking constitution of a placc as such ccntrc. 'l'o bc morc spccilic, it would bc a rcqucst lor thc changc ol' ccntrc ol' cxaminati<ln il' thc dcsircd placc is also a duly constitutcd placc for cxamination, whcrcas to scck changc o [' ccntrc o[ cxarnination to a placc 11()[ cl u l,v- currstitr,rtcd l<lr cxarnination would bc a rcqucst lbr constitution ol'such placc as thc ccntrc of cxamination. Nccdlcss to mcntion, I{ulc-3 ol' Chaptcr-X II ibid vcsts discrction in thc Chairman ol thc lloard to constitutc a placc as thc ccntrc ol'cxamination undcr spccial circumstanccs and on such lcrms as rnay bc dctcrrnincd by him r.rndcr thc rulcs. In this casc, it has not bccn cstablishcd that thc collcgc ol- % thc pctitioncr has duly bccn constitutcd as thc ccntrc of cxamination. Without prcjudicc, sufllcc it to say that bcsidcs thc notillcd ccntrc ol' cxarnination, thc pctitioncr could scck thc changc o[ his cxamination hall to anothcr not illcd ccntrc within thc jurisdiction of' thc Iloard.

llowcvcr, his crnphasis on thc changc ol' thc dcsircd ccntrc docs not hold any ground. lrirstly, thc rcqucst amounts to constitution ol'thc collcgc as Lhc ncw ccntrc ol'cxamination which is cntircly dill'crcnt liorn changc ol- ccntrc olcxamination. Sccondly, suitability ola placc lor

constitution as thc ccntrc ol'cxamination is purcly an intcmal mattcr ol thc Iloard which has absolutc right of dccision in such mattcr. 'l'his Court in thc cxcrcisc ol'i1s cxtraordinary jurisdiction would n<lt substitutc its vicw with thc onc adoptcd by thc Iloard aflcr making asscssmcnt ol'thc attcnding circumstanccs vis-d-vis thc rclcvant I{ulcs. 'l'hirdly, it is thc privilcgc ol'thc l}oard which cannot bc claimcd as of right. 'l'hc collcgc in qucstion is a privatc institutc. Apparcntly, it appcars that its cxarnination hall has bccn shiltcd to thc (lovcmmcnt Ilighcr Sccondary School in thc samc district to cnsurc transparcncy in conducting thc cxarnination

5.ln addition kr thc abovc. ltulc-3 ibid currmands that an application lor thc changc olcontrc shalI bc madc on a prcscribcd lorm which shall bc submittcd through thc pcrson signing thc adrnission lbrm. Ncvcrthclcss, thc application in qucstion was madc on a plain papcr and not on thc prcscribcd lbrm. It was movcd to thc (lhairman ol'thc Iloard by thc rtrardiarr ol'thc pctitioncr It was no1 subrnittcd through thc pcrson having signcd thc adrnission lorms as rcquircd undcr thc rulcs. At thc timc ol'making thc subjcct application, thc (iovcrnmcnt llighcr Sccondary School Jandari Karak had alrcady bccn constitutcd as thc ccntrc o['cxamination for thc studcnts

ol' thc collcgc. Itulc-6 rnakcs it obligatory lor cach application to bc accompanicd by a lcc of Ils. 1000/-. 'l'hc rcquircmcnt ot' this rulc, t<lo, has not bccn satisficd.

Ilcsidcs, Ilulc-7 providcs that thc Controllcr shall havc thc powcr to rcjccl an application {br a changc ol'ccntrc without assigning any rcason lirr his ordcrs

6.ln holding so, wc may scck guidancc lrom thc law laid down in Khvber Medicol University ond others Vs Aimal Khon und others (PLD 2022 Supreme Court 92).

ln this casc, i1 has bccn hcld that:

4.lt has bccn timc and again hcld by this Court that courts must sparingly inlcrfcrc in thc intcrnal govcrnancc and affairs of cducational institutions. It is simply prudcnt that thc courts kccp thcir hands off cducational

% mattcrs and avoid dislodging dccisions of thc u nivcrsity authoritics, who posscss tcch nical expcrtisc and cxpcricncc of actual day to day workings of thc cducational institutions. Evcry univcrsity has thc right to sct out its disciplinary and othcr policics in accordancc with law,' and unlcss any such policy olTcnds thc fundamcntal rights of thc students or violatcs any law, intcrfcrcncc by thc courts rcsults in disrupting thc smooth functioning and govcrnancc of thc univcrsity. It is, thcrcforc, bcst to lcavc thc disciplinary, administrativc and policy mattcrs of thc univcrsitics or cducational institutions to thc profcssional cxpcrtisc of thc

pcoplc running them, unlcss of cou rsc thcrc is a violation of any of thc lundamcntal rights or any law.

5.This sclf-rcstraint by the courts in mattcr of cducational institutions is hascd on thc wisdom that acadcmic frccdom and institutional autonomy of thc univcrsitics must hc protcctcd and safcguarded. Acadcmic frccdom is not mcrcly lihcrty 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, cxpcrimcnt and crcation. lt is an atmosphcrc in which thcrc prcvail tthc four csscntial frccdoms' of a univcrsity; who may tcach, what may hc taught, how it shall bc taught and who may bc admittcd to study.

7.Although, thc lacts ol thc abovc citcd casc pcrtain 1o an issuc ariscn in a lJnivcrsity, bul thc principlc laid down thcrcin is that thc Court should noL intcrlcrc in Lhc intcrnal govcrnancc of an cducational institution. 'l'his principlc is attractcd to thc I'acts and cilcunrstanccs ol'thc casc in hand. 'l hc constitution ol'an cxarrination hall is thc function ol thc rcspondcnts. 'l'hc rcspondcnts may cxcrcisc thc discrction in thc nranncr as warrantcd undcr thc rulcs which cannot bc intcrl-crcd with, unlcss it

inliingcs on thc lundamcntal rights ol'thc studcnts. It has nol bccn pinpointcd as [o what prcjudicc has bccn causcd to thc studcnts by not constituting thc collcgc as thc ccntrc ol- cxamination. Lcarncd counscl lbr thc pctitioncr could not sh<lw any malo./idc on thc part ol'rcspondcnts lor allocation ol' thc (iovcrnmcnt Ilighcr Sccondary School Jandari Karak as cxamination hall lirr thc lbrthcorning cxaminalion.'l'hc lcarncd counscl could not convincc us lbr our indulgcncc inkl thc mattcr.

8.ln this vicw ol lhc mattcr, wc arc lully convinccd that this pctition is dcvoid ol any lorcc. Wc, thcrclorc, d isrn iss il in limine

A n nou nccd

((;hafoor 7,arnal|) Ir"+:

.IUDGE

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(r).8) Ilon'blc Mr. Juslicc lazal Subhan Ilor'blc Mr..lusticc l)r. Khurshid lqbal