PLJ 2012 SC 922
Present: Tassaduq Hussain Jillani & Mian Saqib Nisar, JJ.
Civil Appeal No. 1287 of 2008, decided on 11.4.2012.
(On appeal from the judgment dated 16.5.2008 passed by Islamabad High Court,
in C.R. No. 17/2008) Islamabad
, 1973-- Pakistan
----Art. 185(3)--Leave to appeal--Leave was granted by Supreme Court in terms of order as under one of university recognized proposition, which had been provided that no one should be condemned unheard and statutes had also provided for issuance of show-cause notice, had not been complied with before passing the order and objection had been taken up by petitioner which required consideration. [Pp. 924 & 925] A
Allama Iqbal Open University Act, 1974--
----Ss. 9 & 12--Constitution of
, 1973, Art. 185(3)--Leave to appeal--Ph. D. Degree--No allegation plagiarism--Notification of conferral of Ph. D. Degree was cancelled--Challenged vires of notification of cancellation by way of a civil suit that act of university was product of mala fides--No power to cancel--Ph. D. degree was awarded on recommendation of supervisor--Could not have been cancelled merely on technical grounds--Credibility of recommendation of viva voce committee--Validity--Ph. D. Degree was cancelled mere on account of procedural irregularity and, therefore, thesis be referred to different evaluation committee for considering on merit, would not be tenable--Because such ground was not taken in plaint and appellant could not be granted a relief which was not part of pleadings and secondly, there were concurrent findings of Courts below and Supreme Court seized of an appeal in terms of Art. 185(3) of Constitution generally does not interfere in concurrent conclusions of Courts below. [P. 927] B Pakistan
----Expunging remarks--procedural irregularity--Changed supervisor for thesis--Evaluation of thesis was maneuvered by Dean--Findings might adversely reflect on conduct of Dean and would not in any manner impact on integrity or service profile of appellant who had an impressive academic record--While upholding concurrent findings with regard to cancellation of Ph.D. Degree, Supreme Court persuaded to expunge any adverse remark made by Courts below against appellant. [P. 928] C
Raja Muhammad Bashir, Sr. ASC a/w appellant in person.
Raja Muhammad Ibrahim Satti, Sr. ASC a/w Dr. Nazir A. Sangi, Vice Chancellor, Mr. Hafeez Ullah, Registrar and Mr. Sohail Nazir Rana, Addl. Reg. for Respondents.
Date of hearing: 11.4.2012
Tassaduq Hussain Jillani, J.--Facts giving rise to the instant appeal by leave of the Court briefly stated are that appellant while serving as Assistant Professor in the Faculty of Arabic & Islamic Studies, Allama Iqbal Open University, Islamabad, registered himself in the Ph.D Program of the University wherein the topic was "Masala-e-Afrat-e-Zar, Shariat-e-lslamia Ka Nuqta-e-Nazar and Masley ka Hal" i.e. "Inflation - Shariah View Point and its Suggested Solution". Dr. Zafar Ishaq Ansari was appointed as Advisor / Supervisor. According to the appellant, the said Advisor in July 2000 requested the Dean of the faculty to change him whereafter Dr. Muhammad Mian Siddique was appointed as Advisor out of the panel of Advisors maintained by the University. The appellant submitted his thesis to the new Advisor who expressed his satisfaction and proposed four external examiners / evaluators to the Dean for submitting the same to the Vice Chancellor. The Vice Chancellor in return approved the following two out of the afore-mentioned four proposed evaluators:--
(i) Mr. Mehmood ul Hassan Arif, Chairman Department of Urdu Encyclopedia of Islam,
, Punjab University Lahore
(ii) Dr. Abdur Rahim Ashraf Baloch, Assistant Professor, Islamic Research Institute, International Islamic University,
2. Having, examined the thesis, the evaluators returned the same to the Controller of Examination with positive recommendations and thereafter on 11.11.2000 the Viva Voce was conducted wherein he was recommended for conferral of the Ph.D Degree. A notification was accordingly issued on 11.11.2000. However vide the order dated 16.1.2001, a committee was constituted to reexamine the issue and in terms of the report submitted, the earlier notification of conferral of Ph.D. Degree was cancelled vide the notification dated 31.1.2001. The appellant challenged the vires of the notification of cancellation dated 31.1.2001 by way of a civil suit inter alia on the ground that the act of University was a product of mala fides; that the University had no power to cancel the same and that earlier on he filed an application before the Wafaqi Mohtasib, which was withdrawn by him with the assurance from respondent that the order would be withdrawn. In terms of the written statement filed and the divergent pleas taken therein, following issues were framed:--
"1. Whether the plaintiff was legally entitled to the award of Ph.D. Degree under the law of University and decision of University for cancellation of award of Ph.D. Degree is illegal, if so, then whether the plaintiff is entitled to decree as prayed for? OPP
2. Whether the suit is not maintainable in its present from? OPD
3. Whether the plaintiff has cancelled the material facts from this Court? OPD
4. Whether the plaintiff has not come to the Court with clean hands? OPD
3. Both the parties were allowed to lead evidence and the learned trial Court vide its judgment dated 21.7.2005 dismissed the suit in terms of its finding on Issue No. 1 which judgment has concurrently been upheld by the learned Additional District Judge, Islamabad vide judgment dated 24.1.2008 and the learned High Court vide the impugned judgment dated 16.5.2008.
4. Leave was granted by this Court in terms of order dated 12.9.2008, which reads as under:--
"One of the universally recognized proposition, which has also been provided in the Statute 12 of part XIV of the Allama Iqbal Open University Statute, 1978, that no one should be condemned unheard and the statutes have also provided for issuance of show-cause notice, has not been complied with before passing the impugned order and this objection has also been taken up by the petitioner in para 12 of the plaint, which requires consideration therefore, leave to appeal is granted.
2. The appeal be heard on the available record, with an opportunity to both the parties to file additional documents if they wish so, at an early date."
5. Learned counsel for the appellant submits that the appellant has an illustrious academic record; that the Ph.D. Degree was awarded by the University on the recommendation of the competent Supervisor and Examiners and it could not have been cancelled merely on technical grounds; that there is no finding on merits on the thesis submitted by the appellant on the basis of which he was conferred Ph.D. Degree; that there is no allegation of plagiarism; that the concerned Dean was required in terms of Chapter 9 of Regulations applicable to Ph.D. to sit in the viva voce committee and if the said Dean happened to be father in law of the appellant, it could not erode the credibility of the recommendation of the viva voce committee who had no personal reason to favour the appellant; that in terms of Chapter 9 Regulation 20, a Degree can be cancelled only when the same had been found to suffer from plagiarism by the concerned committee; that the Vice Chancellor and the Executive Council of the University have acted beyond their powers given under Sections 12 & 9 of the Allama Iqbal Open University Act, 1974. He further submitted that since there is no finding on merits of the main thesis subject matter of Ph.D, this Court may direct the University to constitute a fresh committee for evaluation and the matter be decided accordingly. He also pointed out that appellant had also got himself registered in the Ph.D. Program in the
and the said University has conferred a Ph.D, Degree. If appellant's Ph.D. Degree from the respondent University is restored, he contended, it would bring him greater honour to which he is entitled. Gomal University
6. Learned counsel for the respondent, on the other hand, opposed the appeal as according to him appellant's conduct disentitles him any relief; that the respondent cancelled the appellant's Ph.D Degree in view of the report submitted by the concerned committee which found that appellant had maneuvered the change of Supervisor / Advisor through his father in law Mr. Tufail Hashmi who at the relevant time was serving as Dean of the faculty of Arabic and Islamic Studies; that after the change of Advisor, the Ph.D. Degree was conferred in undue haste; that appellant had himself opted to withdraw the complaint from Wafaqi Mohtasib Secretariat and thereafter filed a civil suit which stands dismissed and the findings rendered therein have been concurrently upheld by the two Courts below. These findings of fact, learned counsel contended, may not be interfered with by this Court.
7. Having heard learned counsel for the parties and having gone through the impugned judgment, we find that the learned Civil Judge having considered every piece of evidence led, decided Issue No. 1 against the appellant / plaintiff because he found that the Supervisor Dr. Zafar Ishaq Ansari was changed by the Dean of Faculty of Arabic and Islamic Studies (on 28.10.2000) who happened to be father in law of the appellant. The said Dean, it has further been held, was not competent in the facts and circumstances of this case to direct this change. The Court observed as under:--
"It is pertinent to mention that the plaintiff or the said Dean himself, while appearing as PW-4, has not produced any decision, order or letter of the Board of Advanced Studies and Research, whereby the said Dean was authorized to appoint / change the supervisor"
8. The Court also considered the circumstances and the evidence led under which appellant cleared the viva voce test and found as follows:--
11-11-2000, the viva-voce of the plaintiff is conducted and he is declared successful in the same and the file is sent back to the office of Controller of Examinations for declaration of the result. It is pertinent to mention here that Dr. Muhammad Tufail Hashmi, the then Dean of Faculty of Arabic and Islamic Studies, headed the viva-voce, The propriety demands that the then Dean, who was father in law of the plaintiff, should not have headed the viva-voce of the plaintiff and should have requested the VC to replace him with some other Dean or with some other person. But this was not done by the then Dean and the whole proceedings of viva-voce come under doubt due to this anomaly. As per inquiry report, the file was received in the office of CE on 11-11-2000 and was received by Dy. CE on 15-11-2000, but the result was notified by Dy. CE, containing the date of notification as 11-11-2000."
9. In affirming the afore-referred findings vide the judgment and decree dated 24.1.2008, the learned Court of Appeal in Paras 9 having considered the evidence found as follows:--
"The above facts of the case would clearly show that the appellant worked under the newly appointed Advisor for only two days. There is no quarterly report of the earlier or newly appointed Advisor on the record and a complete thesis, without guidance of the Advisor was submitted to him by the appellant, which was not only examined by him in two days but also recommended it for approval, Needless to mention here that the duly appointed Advisor was not at all satisfied with the said work, I am bound to record here that the Dean changed the Advisor on 28-10-2000 and on 11-11-2000, in just 13 days, the appellant was notified as Ph.D. A work, which in normal course was to be completed in a year has done in just 13 days. Perhaps just to qualify the appellant for the post of Associate Professor published by the University."
10. The learned High Court having gone through the evidence as also the report of the committee constituted for the purpose of examining the thesis came to the conclusion that the appellant obtained the Ph.D., Degree by unfair means and dismissed the civil revision in limini.
11. In para 7 of the impugned judgment, the learned High Court has referred to the findings of the committee constituted by the Vice Chancellor with regard to Ph.D. Degree awarded to the appellant. The findings of the committee were inter alia that the Supervisor / Advisor of Dissertation was changed without the approval of the authority; that the said change was made by Dr. Tufail Hashmi without the approval of the competent authority i.e. the Vice Chancellor; that the Supervisor was appointed on 28.10.2000; that thesis was finalized and submitted for evaluation on 1.11.2000 in a short span of three days, which was rather hasty exercise (as the thesis comprised of 249 pages); that the external evaluators were appointed with the approval of the acting Vice Chancellor and that although Dr. Tufail Hashmi who was Dean of Arabic and Islamic Studies and by virtue of the said office, he was obliged to be present during the viva voce examination of the appellant yet propriety demanded that being candidate's father in law, he should have recused himself. The learned trial Court in para 15 of the judgment adverted to the question as to why the afore-referred undue haste in evaluating and approving the Ph.D. Degree was made. The Court held that it is in evidence that on 29.10.2000 there was an advertisement in newspaper for recruitment against several vacancies including the vacancy of Associate Professor and the last date for filing application was 20.11.2000. There was one vacancy for the subject "Islamic Thought, History and Culture". On the afore-referred circumstantial evidence, the learned trial Court inferred that "Admittedly, the plaintiff was Assistant Professor in AIOU, whereas, his father-in-law, Dr. Muhammad Tufail Hashmi, was Dean of Faculty of Arabic and Islamic Studies. So, the plaintiff as well as the said Dean was supposed to have knowledge about the vacancies and the intention / decision of the University to fill those vacancies, even before publication in the newspaper. The qualification for the said post of Associate Professor was Ph.D in the relevant field along with experience prescribed in the advertisement. It is also an admitted fact that on 29.10.2000, the plaintiff was not having the requisite qualification of Ph.D. It may also be appreciated that for applying against the post of associate Professor, a candidate was obliged to have a Ph.D Degree before 20.11.2000, which was the last date for submission of the applications. Now keeping this scenario in mind the reasons for the procedure adopted for and the resultant issuance of the Ph.D. Degree to the plaintiff becomes denier." For reasons given in paras 7, 8 & 9, the learned High Court came to the conclusion that the appellant was guilty of using unfair means within the meaning of Statute 12 Part XIV of the Allama Iqbal Open University Statutes 1978 and the concurrent findings rendered by the two Courts below did not warrant interference. The contention of appellant's learned counsel that since there is no allegation of plagiarism so far as the main thesis is concerned and that the Ph.D Degree was cancelled merely on account of procedural irregularity and therefore, the thesis be referred to a different evaluation committee for considering the same on merit, would not be tenable. Firstly, because this ground was not taken in the plaint and the appellant cannot be granted a relief which is not part of the pleadings and secondly, there are concurrent findings of three Courts below and this Court seized of an appeal in terms of Article 185(3) of the Constitution generally does not interfere in concurrent conclusions of the Courts below. In Muhammad Idrees Vs. Muhammad Parvez (2010 SCMR 5), this Court at page 10 reiterated the view and held as under:--
"It is settled principle of law that this Court seldom interferes in the concurrent conclusions arrived at by the Courts below while exercising power under Article 185(3) of the Constitution unless and until the finding is on the face of it is against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of a principle relating to appreciation of evidence, or, finally, if the finding could be demonstrated to be physically impossible. This being the practice and the rule of this Court in civil petitions, the burden lies rather heavily on the petitioner to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us."
12. Before parting with the judgment, we may observe that the suit filed by the appellant was concurrently dismissed primarily in terms of the findings on Issue No. 1. The Courts having examined the statute of the University and the evidence led found that there was procedural irregularity; that there was undue haste to favour the appellant and this was done by the Dean of Faculty of Arabic and Islamic Studies, who at that time happened to be appellant's father-in-law; that it was the said Dean who changed the Supervisor/Advisor of the appellant for the thesis and the favourable evaluation of the thesis was also maneuvered by the said Dean. These findings may adversely reflect on the conduct of the said Dean and would not in any manner impact on the integrity or service profile of the appellant who has otherwise an impressive academic record and we have been told, has been conferred a Ph.D Degree by another University. Thus while upholding the concurrent findings with regard to the cancellation of Ph.D. Degree, we are persuaded to expunge any adverse remark made by Courts below against the appellant.
13. For what has been discussed above and by partly modifying the impugned judgments by expunging the remarks referred to in the preceding paragraph, the appeal is disposed of accordingly.
(R.A.) Appeal disposed of