1998 PLP 682 (SCMR)

SH. RIAZ AHMAD, J.

The Board of Intermediate and Secondary Education, Lahore through its Chairman and another seek leave to appeal against the judgment passed by a learned Single Judge of the Lahore High Court, dated 3-3-1997 whereby writ petition filed by the respondent-student was accepted and the petitioner was called upon to declare the result of the examination taken by the respondent.

2. The facts in brief are that the respondent was a regular student of the Divisional Public School, Lahore and he appeared in the Intermediate Examination F. Sc. (pre-engineering) conducted by the petitioner. According to the respondent on account of his enmity with one of the clerks in the school he was involved in a case of unfair means adopted by the respondent in the examination. However, he was exonerated of the said charge, but despite that the result of the respondent was not declared nor communicated. On 24-3-1996 the respondent was informed that he was failing in the subject of Chemistry. On the same day the respondent submitted his form for taking the ensuing examination in the subject of Chemistry, which was to take place on 2-4-1996. According to the respondent he received two letters from the petitioner authorities and through one of the letters the respondent was called upon to send a photograph as well as to deposit Rs.1260 and through the second letter the respondent was directed to submit result card of his previous examination. The respondent informed the Board that he had not received any result card whereupon the petitioners' office informed the respondent that his result card has been despatched to his school on 14-2-1996 and the respondent was not eligible to take the ensuing 'examination, but will have to wait to take 1996 Annual Examination. The respondent was further informed that the deposit of money by him on 24-3-1996 was also beyond time. On 4-4-1996 the office of the petitioner Board again informed the respondent that provisional roll number had been allotted to him, but he should produce the result card. The respondent again asserted that he had not received the result card, which was delivered to him on 5-4-1996. The petitioners then refused to accept the result card on the ground that the date for the submission of the relevant documents for appearing in the examination had expired, being 5-3-1996.

3. Aggrieved by these circumstances, the respondent filed a writ petition, which was admitted to regular hearing and through the interim order the petitioners were directed to issue roll number for the examination commencing from 13-4-1996, but it was clarified that the result of such examination would be subject to the final decision of the writ petition. The writ petition was heard at length and the same was accepted vide order impugned. The petitioners have assailed the said order through this petition.

4. It is urged on behalf of the petitioners that the respondent should suffer for his own fault for not submitting the result card and the other relevant documents in time and the petitioners cannot be blamed for such lapse on the part of the respondent. It was further urged that under the Rules of the Board the respondent was not, entitled to take the examination nor the Board had any such 'power to allow the respondent to appear in the examination. These contentions had also been raised before the learned Single Judge of the Lahore High Court, but on behalf of the respondent reliance was placed on Regulation 10 in Chapter 3 of the Regulations of the Board of Intermediate and Secondary Education, Lahore and' it was urged that it was a genuine case of hardship and the Chairman was fully empowered to relax the stringency of the Rules in favour of the respondent. It was urged. by the respondent before the High Court that in the circumstances of the case, he could not be blamed as he had not been delivered the result card by the school/college. The respondent also placed reliance upon rule 21 of the Rules for Intermediate Examination contained in Chapter

2. Under the aforesaid Rules, if the result of a candidate is declared late except for reason of any default on his part and the candidate has to re-appear in a subsequent examination, the admission form and prescribed fee for such a candidate for that examination may be accepted without payment of late fee within 15 days from the date of declaration of the result or the date fixed for the submission of form and fee without late fee, whichever is later. It was urged by the respondent in the High Court that on its own showing the Board had sent the result card to the school on 14-2-1996 and therefore, the respondent had a vested right to re appear in the subsequent examination within 15 days without payment of late fee and with double fee after 15 days and thereafter on payment of triple fee after a further period of 15 days. According to the respondent, the form submitted by him on 24-3-1996 with triple fee will be thus, deemed to have been submitted in time. All these contentions were vehemently opposed by the petitioners and it was urged that invoking of Regulation 10 by the Chairman would open floodgate for the dispensation of the Rules and the same was not possible. In this behalf the petitioners placed reliance upon a judgment delivered by this Court, which is reported as Chairman, Board of Intermediate and Secondary Education, Lahore and another v. Ali Mir (1984 SCMR 433).

5. Before dealing with these contentions, which have been reiterated by the learned counsel for the petitioners, it will be advantageous to reproduce Regulation 10, which reads as under:

"Notwithstanding anything to the contrary in the regulations and rules, if, in the opinion of the Chairman, there is a case of real hardship due to causes beyond the control of a student or a candidate for an examination of the Board, the Chairman may pass such orders as he may deem necessary to relieve that hardship. The orders of the Chairman, passed under this regulation, shall be reported to the Board for information: Provided that such orders of the Chairman shall not alter the award of marks, obtained by a candidate or his result, determined on the basis of that award. " Perusal of the above Regulation clearly shows that the Regulation has been framed with a' view to dealing with the exceptional situation or hardship and once a case of hardship is established, then the Chairman can pass any order as he may deem necessary to overcome such hardship. It is further pertinent to mention that the Chairman under this Regulation can act notwithstanding anything to the contrary in the regulations and the rules. It is, thus, obvious that the powers of the Chairman are all embracing and can be used to overcome any situation of hardship and condition precedent for exercise of such power in any situation of hardship, which may have occurred under the circumstances beyond the control of a student/candidate. .

6. It was rightly held by the learned Judge of the High Court that merely because the exercise of power under Regulation 10 would open a floodgate of such cases was no ground to shirk from invoking Regulation 10 if, in fact, case of hardship comes to the notice of the Chairman. The judgment of the Supreme Court relied upon by the petitioner was distinguishable inasmuch a: it was laid down by this Court that under proviso to Regulation 10, the Chairman had no power to alter award of the marks obtained by a candidate. The undisputed facts of this case are that the petitioner claims to have despatched result card on 14-2-1996 while the respondent has urged that he was delivered the result card by the college authorities on 5-4-1996 and such assertion by the respondent stood unrebutted in the High Court. It is also evident that the result card was not delivered to the respondent for a period of two months and obviously the delivery of the result card was beyond the control of the respondent. The criteria or test for application of Regulation 10 is, as stated earlier, whether, in fact, it is a case of hardship or not. Obviously, if a candidate suffers for reasons beyond his control then it is a case of hardship. However, if it is a case of negligence or of a situation, which could have been avoided by exercise of diligence by a candidate, the position would be different. As far as the facts of this case are concerned, we are of the view that it was rightly held by the High Court that the respondent had suffered hardship on account of the factors beyond his control particularly in view of the fact that it was not denied that the result card was delivered to the respondent on 5-4-1996. 7 Having considered the facts from all angles, we are of the view that the High Court had rightly treated it a case of hardship and, thus. in the circumstances, issuance of a writ to the petitioners to invoke the hardship clause is not open to exception. Hence, we do not find it a fit case to interfere with the judgment impugned, therefore, leave to appeal is. refused. A.A./B-9/S Leave refused.