P L D 2023 Peshawar 40
Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ
SALMAN KHAN and 2 others---Petitioners
Versus
UNIVERSITY OF SWAT through Vice-Chancellor and 5 others---Respondents
Writ Petition No. 205-M of 2021, decided on 1st June, 2022.
(a) Administration of justice---
----Ignorance of law cannot be construed or sustained as bona fide excuse.
Muhammad Ameen and another v. Jawaid Ali and 5 others 2017 YLR Note
429 and Zaman and 2 others v. Muhammad Khan 2017 YLR 353 rel.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 114---Estoppel---Applicability---There can be no estoppel against law.
Justice Muhammad Farrukh Irfan Khan, Judge, Lahore High Court, Lahore v.
Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary
Affairs Division Government of Pakistan, Islamabad and 4 others PLD 2019 SC 509
and University of Malakand through Registrar and others v. Dr. Alam Zeb and others
2021 PLC (C.S.) 1168 rel.
(c) Constitution of Pakistan---
----Art. 199---Constitutional petition---Educational institution---Failure to pass
examination in duration fixed---Degree, non-awarding of---Petitioners were students
who were not awarded degrees by the university for not clearing examination in
duration so fixed---Plea raised by petitioners was that they appeared in examination
and were entitled to degree---Validity---Estoppel could not be used as sword rather it
could be used as shield---Petitioners were allowed by college administration for
appearing in examination on their own risk and cost and degree was to be awarded by
university and not by college---University was to follow its own statutes and
regulations where no such further extension was provided for failures---Petitioners
failed to point out any violation of their rights or statute or regulations---High Court
declined to interfere in the matter as petitioners remained unable to complete their
studies for the award of degree---Constitutional petition was dismissed in
circumstances.
Najeeb Ullah v. Controller of Examination, University of Agriculture,
Peshawar and others Writ Petition No. 4660-P of 2020, decided on 14.04.2021 rel.
(d) Administration of justice---
----When a thing is required to be done in a particular manner and procedure, the
same must be done in that manner and not otherwise.
Ajmir Shah Ex-Sepoy v. The Inspector General Frontier Corps Khyber
Pakhtunkhwa and another 2020 SCMR 2129 rel.
Muhammad Yar Malezai for Petitioners.
Razauddin Khan, A.A.G for Respondent No.6.
Barrister Asad-ur-Rehman for Respondent/University.
ORDER
MUHAMMAD NAEEM ANWAR, J.---The petitioners, through instant
petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan,
1973, seek the following prayer:
"In view of the above submissions, it is therefore very humbly prayed that, on
acceptance of the present petitioner appropriate writ (s) may kindly be issued
against the respondents whereby:
a) to declare the denial of respondents from issuing transcripts/ degrees etc for
BS Mathemtics to the petitioners, and the letter bearing No.0714/UOS/Exams-
20 dated 07.12.2020 as null and void being arbitrary, perverse, ill-founded,
illegal, without lawful authority and jurisdiction and void ab-initio.
b) to direct the respondents to issue/grant the petitioner with their respective
DMCs, Provisional Certificates and transcripts/degrees of BS Mathematics
with anything else ancillary and connected thereto.
Any other relief, though not specifically prayed for, which is deemed fit and
appropriate in the circumstances, may also be very graciously granted for the
ends of justice."
2. Learned counsel for the petitioners contended that the petitioners were regular
students of Government Jehanzeb Post Graduate College, Saidu Sharif, Swat affiliated
with the University of Swat; that they were admitted in the discipline of BS
Mathematics for Session 2014-18. He added that though the petitioners have
completed their course/ education i.e., eight semesters and passed all the papers but
were declared failed in the paper of Fluid Mechanic on the ground of short
attendance, thus, they were compelled to avail session of two additional semesters and
despite they appeared in the exam their result was withheld; that likewise, the
petitioners availed a further extension of two semesters, appeared in the exam,
completed all the codal formalities, they have been declared as passed candidates but
when their results were submitted before the respondent/ university for award of
degrees, the university has refused same through impugned letter. He added that on
the competition of study, the respondent/ university is duty bound to award degrees to
the petitioners in accordance with its own statutes.
3. Contrarily, learned counsel for the respondent/university contended that the
respondents have not violated any law/statute. He submitted that the petitioners were
the students of session 2013-17 failed in semester 6th to qualify for promotion to the
next semester, they repeated the failed semester with the new batch of session 2014-
18 but they were bound to complete their studies in 2017 or with additional two years
till 2019 but they failed to complete their studies even within the additional two years,
thus, they were rightly communicated by the University. Learned AAG for respondent
No. 6 contended that though the petitioner passed their 6th semester and promoted to
next semester. They appeared in the exam of 8th semester spring 2018 but detained in
exam in two courses for short of attendance. Lastly, he contended that after laps of
requisite period for competition of their course they requested the institution for
appearing in examination on their own risk and cost with the plea that they would
apply to the University for relaxation in time period on humanitarian ground but will
not claim any benefit in case of rejection of their request from the University.
4. Arguments heard and record perused.
5. Irrespective of the fact that the petitioners in their petition have shown
themselves to be the students of BS (Mathematics) for Session 2014-18, record
reflects that they were students of Session 2013-17 (08 semesters). It is also not
disputed that the petitioners failed in six semesters and they have repeated the failed
semesters in new batch of 2014-18. In accordance with the statute of the university,
the petitioners were required to complete their course within the period commencing
from 2013-17, however, in case of any shortcoming further 02 years could be granted
to them but in no way, one could be allowed to avail more than 12 semesters. It is
indisputable that the petitioners could not complete their course and passed their exam
of eight semesters within the requisite time i.e., batch of 2013-17 with additional four
semester (two years) for 2018-19.
6. Record further reflects that the petitioners Nos. 1 and 3 (Salman Khan and
Atta Ullah) were readmitted in 6th semester spring 2017, shifted to batch 2014-18,
appeared in exam and were promoted to next semester 7th subsequently to 8th
semester. Petitioner No. 2 readmitted in 7th semester (Fall 2017) appeared in
examination and promoted to 8th semester. They appeared in. the exam for spring
2019 but due to short of attendance in the class of 2nd course Fluid Mechanics once
again could not qualify their programme of studies within maximum permissible
duration for completion of degree. Undoubtedly, the petitioners admitted in for the
session 2013-17, and could not complete their shortcomings with further four
semesters of two year till spring 2019. Keeping in view that the petitioners were
allowed by the institution for appearing in spring 2020 examination held on
23.09.2020, we directed respondent No. 6 to produce admission form for clarification
as to whether the maximum period for completion of course had already been lapsed?
The record produced by the respondents reflects that the petitioners submitted their
form for repeating in failed subjects, as time barred case, they were allowed with
following observation:
"As the student is pressing hard on humanitarian ground allowed provisionally
on his own risk, responsibility and cost subject to the condition that in case of
refection by University nether benefit will be claimed nor litigation would be
made"
7. Learned counsel for the petitioners made a reference to the other petitions
wherein a writ was issued to the respondent/university for issuance of degree but the
case of the petitioners is altogether different from the petitioners of those petitions for
the following reasons:
i. The petitioners were detained in VIII semester of 2018 on account of shortage
of required attendance.
ii. They were allowed to repeat the course by observing clause 15(a) of the
Regulations of 2012, for the upcoming examination firstly, they were required
to be registered and secondly, to attend the classes regularly.
iii. Spring 2019 was the last chance for the petitioners for which they were
directed to repeat and attend the classes but they have not observed the
regulations 15( a) of 2012. They have availed two extra years i.e., four
semesters but could not complete their course.
Learned counsel for petitioners, while relying upon the case of "Syed A.S.
Shah v. University of Punjab and others" (2015 YLR 1733), contended that the
petitioners have completed the study in the year 2020, thus, they are entitled for the
award of degree in the case (supra), it was held that no one should suffer on account
of omissions and commissions of the functionaries but it is not the case of petitioners
who have appeared themselves in the examination with their stance before the college
that if the University reject their case neither they will claim any benefit nor will enter
into litigation. The College administration will have to follow the regulations of the
University and college by itself could not grant the degree. Likewise, the other case
law relied upon by the learned counsel for petitioners is also not applicable to the case
of the petitioners.
8. Not only the college administration but the University too is bound to act upon
the regulations, the student of an institution cannot be allowed to set up the case on
the ground of unawareness of the law because the ignorance of law is of no excuse at
all. It is an established law that a plea of ignorance of law could not be construed or
sustained as a bona fide excuse. This view is fortified on the principle of the
"Muhammad Ameen and another v. Jawaid Ali and 5 others" (2017 YLR Note 429)
and "Zaman and 2 others v. Muhammad Khan" (2017 YLR 353). The regulations
provided sufficient time for completion of course earlier within the period, for which
they were admitted but in case of failure further period of four semesters (two years)
were provided for completion of course but even than the petitioners could not clear
their course. The petitioners cannot allege estoppel against the college administration
or university firstly, it is settled law that there can be no estoppel against law.
Reliance is placed on the cases of "Justice Muhammad Farrukh Irfan Khan, Judge,
Lahore High Court, Lahore v. Federation of Pakistan through Secretary, Ministry of
Law, Justice and Parliamentary Affairs Division Government of Pakistan, Islamabad
and 4 others" (PLD 2019 SC 509) and University of Malakand through Registrar and
others v. Dr. Alam Zeb and others (2021 PLC (C.S.) 1168), and secondly, nothing is
available on record which could be termed as estoppel against the respondents and
lastly, estoppel cannot be used as sword rather it could be used as shield. The only
argument of the learned counsel for petitioners that they were allowed by the college
administration for appearing in examination in the year 2020, which plea too is of no
help because they were allowed to appear in examination on their own risk and cost as
the degree is awarded by the University and not by the college and the University will
have to follow its own statutes/regulations, where no such further extension was
provided for failures. This Court in the case of "Najeeb Ullah v. Controller of
Examination, University of Agriculture, Peshawar and others" in Writ Petition No.
4660-P/2020, decided on 14.04.2021 has observed that:
Under the University Rules, a student of Bachelor's level shall clear his
examination for award of degree within six years. The admitted position in the
present case is that the petitioner has exhausted all the chances which were
provided to him by the University under the rules. The record further speaks
that the University, vide notification dated 28.05.2019, also provided one time
extension to the time barred students, including the petitioner, at
undergraduate level for completion of their degree requirements but even then,
he could not succeed. This Court can interfere in the order passed by an
authority, if the action is based on mala fide or arbitrary or does not confirm to
the statutory requirements, or the order is patently erroneous. When learned
counsel for the petitioner was asked as to what right of the petitioner has been
violated due to the impugned order of the respondents, he failed to satisfy us.
Likewise, no mala fide, arbitrariness or discrimination was found on the part
of the University while passing the impugned directions. As the petitioner has
failed to point out the infringement of any statutory or fundamental right, or
mala fide on the part of respondents while imposing the impugned restraint upon
the petitioner, warranting interference by this court in its constitutional
jurisdiction, therefore, the desired writ cannot be issued.
9. The respondent/ university and the college were supposed to act in accordance
with law. i.e., Statute and Regulations. There is no cavil with the proposition that
when a thing is required to be done in particular mode and procedure, the same must
be done in that mode and manner, and not otherwise. Reliance is placed on the case
law reported as "Ajmir Shah Ex-Sepoy v. The Inspector General Frontier Corps
Khyber Pakhtun-khwa and another" (2020 SCMR 2129), wherein it was held that:-
It is well settled principle of law that where a law requires doing of something in
a particular manner it has to be done in the same manner and not otherwise.
Reliance in this respect is place upon the cases of Muhammad Hanif Abbasi v.
Imran Khan Niazi (PLD 2018 SC 189), Shahida Bibi v. Habib Bank Limited
(PLD 2016 SC 995) and Human Nos. 4668 of 2006 and others (PLD 2010 SC
759).
10. The petitioners have not been able to point out any violation of their rights or
the statute or regulations rather they have admitted at the bar that they remained
unable to complete their studies for the award of degree.
11. In view of the above, we do not feel persuaded to admit the instant application
for regular hearing, as such, the instant petition being without substance is hereby
dismissed in limine.
MH/212/P Petition dismissed.
;
