ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
C. P.No.D-2149 of 2012
DATE ORDER WITH SIGNATURE OF JUDGE
Date of haring 14.02.2013.
Date of order 14 .02.2013.
AFTAB AHMED GORAR,J- The petitioner has filed this petition on 15.11.2012 with following prayers:-
a) Declare that the petitioner due to his abduction was under illegal/wrongful confinement at the hands of unknown persons from 1st August, 2012 to 7th August, 2012 and after his securing from 8th August, 2012, he was confined to bed upto 28th August 2012 as such he was unable to attend his class of 2nd term 3rd year (6 semester) in B.E (Biomedical) Engineering, at Mehran University of Engineering and Technology Jamshoro.
b) Declare that showing the attendance 64% (Not eligible) instead of 75% (legible) of the petitioner in the attendance sheet known as “Provisional Consolidated List of Class Attendance Department of Bio-Medical Engineer issued/published on 08th November, 2012 on internet by the respondents is arbitrary, unjust, illegal, unlawful, void-abinitio, invalid and against the principles of natural justice, because such absence of the petitioner from the class was beyond his control;
c) Direct the respondents to allow the petitioner to appear in the examination of Class 2nd term, 3rd year (6 semester) in B.e. (Biomedical) Engineer, at Mehran University of Engineering and Technology, Jamshoro.
d) Costs.
e) Any other relief;
2. Brief facts of the case are that the petitioner is the student of 2nd term, 3rd year (6th semester) in B.E. in Mehran University of Engineering and Technology Jamshoro and was attending the classes regularly, however, on 1st August, 2012 at 2130 hours, he while going towards the University was abducted by unknown accused persons and was recovered on 7th August, 2012. He remained confined on bed due to torture of the accused persons and from 29th August, 2012, he started attending the classes regularly, however, could not secure required attendance of 75% and his attendance was 64%, as such he was declared not eligible to appear in the examinations by the respondents vide Provisional Consolidated List of Class Attendance Department of Bio-Medical Engineer dated 08.11.2012.
3. The respondents filed their comments wherein they denied the contention of the petitioner and stated that for each term of examination 75% attendance is mandatory but the petitioner did not secure the required attendance, therefore, he was declared not eligible to appear in the examinations.
4. Learned counsel for the petitioner argued that due to his abduction and mental torture by the kidnappers, the petitioner could not secure the required percentage of attendance in the University. He further contended that it was beyond the control of the petitioner to attend the class after 1st August, 2012 as he was under the clutches of the kidnappers and was subjected to physical as well as mental torture. He argued that after his release on 7th August, 2012, the petitioner remained confined on the bed and as soon recovered health, he attended his classes. Learned counsel submitted that the absence of the petitioner from the University, which resulted into his deficient attendance in the classes, was neither willful nor deliberate but was beyond his control, therefore, he was entitled for condonation of the attendance. He further contended that petitioner’s father submitted an application on 12.11.2012 to the respondent No.3 explaining the reasons for non attendance of the petitioner and requesting him to allow the petitioner to appear in the examination but same was turned down. Learned counsel contended that under the orders of this court, the petitioner appeared in the examination of sixth semester B.E. but his result has not been declared.
5. On the other hand, learned counsel for the respondents No.2 to 5 contended that the petitioner failed to secure required 75% attendance in the classes, which is mandatory for the students for their eligibility to appear in the examination. He contended that the petitioner failed to justify his absence, therefore, he has been declared not eligible to appear in the examination. He referred to regulation No.(9) of 2003 pertaining to the Term Requirements which provides minimum required attendance as 75% for eligibility to appear term examination. He contended that though in genuine case, 10% condonation in attendance can be given by the Vice Chancellor but the petitioner’s case also does not come within the criteria of regulation No.11, whereby the Vice Chancellor has discretionary powers to condone the attendance, therefore, the petitioner is not entitled for any concession. He further contended that there is no example during entire University record for condonation of attendance more than 10%, as such the petitioner is not entitled for the condonation sought for and the petition is liable to be dismissed.
6. We have heard learned counsel for the parties and also examined the record carefully.
7. The main ground urged by the petitioner for condonation of his attendance is that he was abducted by the unknown culprits on 1st August, 2012 and was under the clutches of the accused persons and was released on 7th August, 2012. He further pleaded that he was subjected to physical and mental torture, therefore, he remained confined on the bed from 7th to 28th August, 2012 and started classes from 29th August, 2012. Though on 7th August, 2012 the petitioner registered FIR No.168/2012 P.S Naseem Nagar regarding his abduction but before this, neither petitioner’s father made any complaint with the Police Station in this regard. According to the petitioner, he was released from the clutches of the accused persons on 7th August, 2012 during police encounter in which allegedly three dacoits were killed but neither such FIR of police encounter nor memo of petitioner’s recovery has been produced in court. It is further observed from the comments and the attendance sheets annexed therewith, that the petitioner attended his class on 8th August, 2012 and thereafter remained absent. If the petitioner was able to attend his class on second day of his recovery, how he was unable to attend classes thereafter on the ground that due to physical and mental torture by the accused persons. This aspect alone belies the contention of the petitioner that after his recovery from the dacoits/accused persons, he was unable to attend the classes on account of physical and mental torture.
8. Learned counsel for the respondents have invited our attention to the Regulation No.”9”whereby the required percentage for eligibility of the student to appear in the term examination has been shown as “75%”and the Regulation No.11, wherein it has been provided that even the Vice Chancellor has discretionary powers to condone the attendance in a genuine case upto 10% and not otherwise. The said regulations, according to learned counsel for the respondents, have complied with during entire past history of the University. We, therefore, would not disturb such regulations which are maintained by the University in order to maintain the standard of the education. We are of the opinion that the petitioner does not qualify to appear in the term examination for want of required percentage in the attendance. Learned counsel for the petitioner has failed to justify his absence from the University. Even after release from the accused persons, the petitioner did not attend the classes and remained out of the University for about 21 days, which has not been explained by him. Since the regulations of the University is maintaining its rules and regulations in connection with the attendance and conducting examinations, we would not disturb such rules and regulations. These regulations are applicable across the board. The petitioner has failed to demonstrate any unfair or discriminatory treatment with him which may call for interference of this court.
9. So far the interim relief sought by the petitioner for his appearance in the examination vide order dated 20.11.2011 is concerned, it was passed at the request of the petitioner and too without entering into the controversy and was subject to outcome of these proceedings, therefore, same came to an end on dismissal of this petition.
10. In case of Miss Javaria Vs. MUET in C.P. No.1649/2010, this court has already elaborately discussed issue of similar nature and the petition was dismissed vide order dated 05.05.2011, which was assailed before the Honourable Supreme Court of Pakistan in Civil Petition No.468-K of 2011, where the order of this court was maintained.
11. In view of what has been discussed above, we are of the considered view that the petitioner is not entitled to relief sought for and the petition merits no consideration, which is dismissed alognwith listed applications.
JUDGE.
JUDGE
A.K