Order Sheet
IN THE HIGH COURT OF SINDH, KARACHI
Suit No. 755 of 2010
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Date Order with signature of Judge .
For hearing of C.M.A. No. 4430 of 2012 (U/S 151 CPC) :
M/S Shahnawaz M. Sahito and Zulfiqar Ali Langah, advocates for the plaintiff along with the plaintiff and her daughter
Ms. Valieyah Ikram.
Mr. Naveed-ul-Haque, advocate for defendants 1 to 6.
Date of hearing : 23.7.2012.
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Nadeem Akhtar, J. : Through the listed application, the plaintiff had prayed that defendant No.6 British Overseas School be directed to issue ‘O’ Level Certificate required by her daughter Valieyah Ikram for admission into Lahore University of Management Sciences (LUMS) as she had submitted an undertaking to produce the same before the said University for finalizing the formalities of her admission. By a short order announced on 23.07.2012, this application was allowed by me in the following terms :-
“ For the reasons to be recorded later this application is allowed. Since relations between the parties are strained for the last many years, therefore, it would be appropriate that the needful be done under the supervision of the Nazir of this Court. Defendants No.1, 2 and 6 are directed to file in original with the Nazir of this Court the School Leaving Certificate / ‘O’ Level Certificate of Ms. Valieyah Ikram within two weeks from today along with her original final result. Thereafter, the Nazir shall handover the above to Ms. Valieyah Ikram without any further order of this Court and without notice to the other side. ”
Before allowing this application on 23.07.2012, following order was passed by me on the same day keeping in view the facts and circumstances of this case :-
“ According to the plaintiff, her daughter, who was born on 11.9.1993, was a minor when this suit was filed, therefore the daughter did not file this suit in her own name. The record shows that during the pendency of this suit, the daughter attained the age of majority on 11.9.2011. After hearing the learned counsel for both the parties I am of the view that this suit ought to have been filed by the daughter Ms. Valieyah Ikram. Under Order I Rule 10(2) CPC, the Court may at any stage of the proceedings, either upon or without application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added. Exercising the power conferred by Order I Rule 10(2) CPC, it is ordered that Ms. Valieyah Ikram daughter of Ikramullah Mehsud be joined in this suit as plaintiff No.1 and the name of the present plaintiff Dr. Sofiyah Saeed be renumbered as plaintiff No.2. Let amended plaint be filed within two weeks. ”
In view of the above order, Ms. Valieyah Ikram (plaintiff’s daughter) and Dr. Sofiyah Saeed (the original plaintiff) shall be referred to in this order as plaintiff No.1 and plaintiff No.2, respectively.
Following are the reasons for allowing the listed application :
1. Brief facts of this case are that plaintiff No.1 remained a student of British Overseas School, Karachi, and studied there for a period of nine (09) years. As per the averments made in the plaint, plaintiff No.1 had a good track record throughout in relation to her performance, conduct, hard work and good manners, which fact was always acknowledged by her teachers. However since January / February 2010, plaintiff No.1 was being victimized by some of the teachers of the school which caused psychological trauma and stress for her. All the students of plaintiff No.1’s class were informed by the school to submit their Research Draft by 11.03.2010, but plaintiff No.1 was unaware of any such information as she was unable to attend the school on the relevant day because her grandmother had undergone a cardiac surgery on the said day. As soon as plaintiff No.1 came to know about this, she immediately approached her teacher before the deadline seeking for the guidelines for submission of the Research Draft. It is the case of the plaintiffs that no assistance was provided to plaintiff No.1 by the school on the ground that guidelines had already been given to all the students. On 08.03.2010, plaintiff No.1 was finally told to submit her work by 11.03.2010, that is within three days, whereas her classmates were allowed two weeks’ time for the same work. Despite all the limitations, plaintiff No.1 managed to complete and submit her work within the time allowed by the school.
2. It is also the case of the plaintiffs that plaintiff No.1 was informed by her teacher (defendant No.3) that plaintiff No.1 had copied her work from the internet, therefore, she will not be allowed to sit in her English language examination. In the above back-ground, this Suit was filed against the defendants for declaration, permanent injunction and damages, along with C.M.A. No. 5026 of 2010 praying that the defendants be directed to enter the name of plaintiff No.1 in the English language examination of Class XI and to allow her to appear in the said examination. It may be noted that by Order passed in this Suit on 18.5.2010 on C.M.A. No. 5026 of 2010, plaintiff No.1 was allowed by this Court to sit in all her papers including the English language examination. However, it was mentioned in the said Order that the result of plaintiff No.1 will not be announced by the defendants.
3. Accordingly, plaintiff No.1 appeared in all her papers of Class XI, including the English language examination, and successfully cleared / passed all of them. The defendants did not announce the result of plaintiff No.1, but she came to know through the internet that she had passed in her final examination. The result of the ‘O’ Level examinations is made available on the internet as the same is posted online by the Cambridge International Examination system. After successfully passing in her final examination, plaintiff No.1 wanted to pursue her career by achieving higher education. For this purpose, she applied for admission into the undergraduate programme at the Lahore University of Management Sciences (LUMS) on the basis of her final result retrieved by her from the internet. Plaintiff No.1 got selected for admission in the said University, but her ‘O’ Level Certificate was demanded from her by the said University in order to process and finalize her admission. An email sent in this behalf by LUMS to plaintiff No.1 has been annexed with the listed application.
4. It was contended by the learned counsel for the plaintiffs that plaintiff No.1 remained a student of the defendant No.6 School for a period of nine years, and during this long period, a substantial amount of about Rupees ten million was paid to the School on account of her admission fee, education fee, examination fee, etc. It was also contended that at present 300 UK Pound Sterling are still lying with the School as security deposit paid by the plaintiffs. The learned counsel submitted that if the course work submitted by plaintiff No.1 was not acceptable to the School due to any reason, the School could have rejected the same as rejection of course work is the maximum punishment which could be awarded to any student. He further submitted that once the course work was accepted by the School whereafter plaintiff No.1 successfully passed in all her papers, the School had / has no authority or justification to withhold her final result and ‘O’ Level Certificate. He also referred to the past record and monitoring report issued by the School in respect of plaintiff No.1 which showed that plaintiff No.1 was not involved in any malpractice, cheating or in any such activity which may justify the School to withhold her final result and ‘O’ Level Certificate.
5. Mr. Naveed-ul-Haq, learned counsel for defendants No.1 to 6, opposed this application inter alia on the grounds that plaintiff No.1 cheated in her English language course work by plagiarizing and copying such work from the internet which was not acceptable to the School and that a notice was sent in this behalf to plaintiff No.1 to appear before the Board of Governors of the School, but she did not appear before the said Board. It may be noted that the notice referred to by the learned counsel was not filed by the defendants with their counter affidavit to this application. Therefore, the contention of the learned counsel regarding issuance of notice to plaintiff No.1 cannot be considered. In response to my queries, the learned counsel conceded that plaintiff No.1 submitted fresh course work for her examination which was not plagiarized ; that the previous / alleged plagiarized course work was not included in the fresh course work submitted by plaintiff No.1 ; that the final examination given by plaintiff No.1 was not based on any plagiarized course work nor plaintiff No.1 copied her course work or cheated in any of her papers in the final examination ; that the fresh course work submitted by plaintiff No.1 was never rejected by the School ; and that plaintiff No.1 passed in all her papers. Mr. Naveed-ul-Haq Advocate referred to paragraph 4.3 of ‘Joint Council for Qualifications (JCQ), General and Vocational Qualifications, Suspected Malpractice in Examinations and Assessments, Policies and Procedures’, filed by the defendants along with their counter affidavit. He argued that in view of the aforementioned policies and procedures, that authorize the School to reject the suspected course work, plaintiff No.1 became disentitled from receiving her final result and ‘O’ Level Certificate because she was guilty of committing plagiarism and also as this Court vide Order dated 18.05.2010 had directed the School not to announce the result of plaintiff No.1.
6. In their rebuttal, learned counsel for the plaintiffs strongly reiterated the submissions made by them and once again submitted that the School had / has no authority or justification to withhold the final result and ‘O’ Level Certificate of plaintiff No.1. The learned counsel argued that even a bare reading of defendants’ aforementioned document shows that it was not a case of plagiarism or cheating as alleged by the defendants, and that reliance on the said document by the defendants was misconceived. In support of this submission, the learned counsel referred to paragraph 4.3 of the said document that provides that if a course or portfolio work or a controlled assessment is rejected by the centre on the ground of malpractice, candidates have the right to appeal against such decision. The learned counsel submitted that plagiarism is not covered by this provision, whereas malpractice was never alleged against plaintiff No.1. Moreover, the right of appeal provided in the said paragraph 4.3 was never afforded to plaintiff No.1 by the defendants.
7. I have observed that paragraph 4.3 of the aforementioned document filed by the defendants deals with rejection of course work etc. by the centre, which is the defendant No.6 School in this case. The said provisions are not relevant to this case for the simple reason that the fresh course work submitted by plaintiff No.1 was admittedly never rejected by the defendants. It is an admitted position that the purported action against plaintiff No.1 was taken by the defendants in March 2010, and she sat in her final examination of in May 2010 in pursuance of the Order passed by this Court on 18.5.2010. I have also observed that the aforementioned document regarding policies and procedures filed and relied upon by the defendants pertains to the period from 01 September 2011 to 31 August 2012. Therefore in my humble opinion not only paragraph 4.3 of the said document, but the said document itself shall not be relevant to this case.
8. The contention of the learned counsel for the defendants that plaintiff No.1 is not entitled to receive her final result and ‘O’ Level Certificate because this Court vide Order dated 18.05.2010 had directed the School not to announce the result of plaintiff No.1, has no force as the said Order was merely an interim Order. It may be noted that at the time of passing of the said Order, plaintiff No.1 had neither appeared in any paper nor had she passed her final examination.
9. As noted above, it has been admitted by the defendants that the fresh course work submitted by plaintiff No.1 for examination was not plagiarized and that the final examination passed by her was not based on any plagiarized course work nor she copied her course work or cheated in any of her papers in the final examination. It is also a matter of record that the fresh course work submitted by plaintiff No.1 was never rejected by the School. In view of this admitted position, it is clear that the final examination was passed by plaintiff No.1 on merits without any plagiarism or cheating. It is held so because of the fact that the defendant School itself, in its record, has shown / treated plaintiff No.1 as “passed”. The plaintiff, after having successfully passed her final examination and after having been declared as “passed” by the School, is entitled to receive from the defendant School her final result and ‘O’ Level Certificate and the School is obliged to hand over the same to plaintiff No.1.
10. In the above context, I would like to refer to the case of Arif Majeed Malik & others V/S Board of Governors, Karachi Grammar School, reported as 2004 CLC 1029 decided by a learned Division Bench of this Court. In the said case, it was inter alia held by the learned Division Bench that any organization running a school by its very nature performs functions of great concern to the public ; that even when the respondent School was not a department of the Government or an institution substantially owned and managed by it, an element of public duty to impart proper education to students who fulfill the fee requirement and agreed to abide by the disciplinary and other regulations of the school is always present ; that such duty like all public powers must be exercised fairly and honestly irrespective of any strict legal right existing in favour of the students ; and that such duty would amount to an obligation in terms of Section 3 of the Specific Relief Act which could always be enforced through a perpetual injunction.
11. It has come on record that plaintiff No.1 has been selected for admission into LUMS and that without her ‘O’ Level Certificate her admission cannot be processed and finalized by the said University. I may observe here that LUMS is one of Pakistan’s prestigious educational institutions of international repute, and getting an admission there is not only a matter of pride, but also a rare opportunity for any student. The action of the defendants of withholding plaintiff No.1’s ‘O’ Level Certificate could have affected and jeopardized not only her opportunity to receive higher education, but also her career and her entire future. Such valuable and precious rights of young students require respect and protection, and violation thereof in any manner must not be allowed. Even otherwise, the relationship of student and School between plaintiff No.1 and the defendant School has come to an end, therefore, the defendant School has no right or authority to withhold important credentials of plaintiff No.1 that are her important and permanent record.
12. In view of the above discussion, CMA No.4430 of 2012 was allowed vide short Order dated 23.7.2012 on the terms mentioned therein. It is hereby clarified that the observations made and the findings contained in this order shall not affect in any way the merits of the case of any of the parties in this Suit, and that this Suit shall be decided on its own merits in accordance with law.
JUDGE.
*Suit 755-10/ Order/Court Work/Desktop/ARK*