1996 PLP 1383 (MLD)

(iii) that the petitioner herein though was a necessary party but was neither heard nor any notice was issued to him, therefore, the order suffers from an illegality; and (c) that respondents Nos. l to 3 whose merit was revised by the orders of the President, recorded in appeal, did not pass the above examination but were given 'grace marks' keeping in view the hardship, therefore, could not contest the merit positions. It was explained that a candidate failing in any subject, could be deemed to have passed the examination by a concession given to him through the 'grace marks' but is not entitled to contest the merit position. It was, therefore, argued that the petitioner was the sole contestant to be awarded the first position for the above‑referred examination. The learned counsel referred to Annexures ' A' to ' E' and Rules Nos. 11 and 12 of the University Calendar and the Act called as that Establishment of the Office of Mohtasib (Ombudsman) in Azad Jammu and Kashmir Act, 1992, in support of his assertions.

4. On the other hand, the learned counsel for the respondents, opposed the petition by advancing the following arguments:‑‑‑ (i) That the petitioner, in view of availing, alternate remedy by filing a review petition against the order of President of Azad Jammu and Kashmir passed in appeal on October 20, 1993, could not invoke the extraordinary Constitutional jurisdiction of this Court through this writ petition; (ii) that the assertion of the petitioner with regard to filing of the appeal before the President of Azad Jammu and Kashmir as time‑barred, is against the facts on record. It was argued that the appeal was filed on December 27, 1992 which was well within time; (iii) that the claim of the petitioner for not being heard, was baseless, keeping in view the facts recorded in the order, particularly after filing the review petition before the President of Azad Jammu and Kashmir, the point merits no consideration; (iv) that the plea of giving 'grace marks' by the University to respondents Nos. l to 3, is against the facts. It was argued that the respondents passed the examination in all the subjects and nothing was brought on record by the petitioner to substantiate the above plea; and (v) that alternatively, the respondents, even if passed the examination with grace marks, no rule or law placed any restriction for not awarding any merit position. The learned counsel referred to the amendment incorporated in the rules referred to above by the learned counsel for the petitioner in support of his assertions. '

5. I have heard the learned counsel for the parties and also gone through the record. It is admitted between the parties that the petitioner and respondents Nos. l to 3 secured 625, 647, 637 and 626 out of 900 marks respectively in the Annual B.A./B.Sc. Examination held in 1991. A Notification, Annexure 'A', declaring the petitioner to have secured first position, is also admitted to have been issued which was, later on, modified by issuance of another Notification of February 19, 1994, on the orders of the President of Azad Jammu and Kashmir, passed in appeal filed against the order of respondent No.5, recorded in a review petition. The primary question to be resolved in the controversy between the parties is whether respondents Nos. l to 3 were given 'grace marks' in some subjects to enable them to pass the above examination and if so, whether the above respondents were not entitled to contest for any medal or merit position. It may be stated that the petitioner has placed on record the Notification, dated July 9, 1992, Annexure ' A' and subsequently, the Notification issued in favour of the respondents, Annexure ' E' along with the orders passed by respondent No.5, on October 5, 1992 and November 30, 1992, including the order passed by the President of Azad Jammu and Kashmir in appeal, in support of his assertions. On the other hand, the respondents have placed on record the 'Result Cards', showing their total marks obtained in the examination, along with the written statement. The above total marks obtained by the respondents are not disputed. However, an objection was raised that the respondents were given grace marks, which disentitled them to contest any medal or merit position. The record produced by the petitioner does not substantiate his above point of view as no relevant record from the University or otherwise was placed to prove the above claim though respondent No.5 in his orders placed on record remarked about it. Therefore, it can safely be resolved that there was no record available with this Court in support of above assertion of the petition. Even otherwise, the stand taken by the petitioner for the respondents not being eligible to contest the merit position in view of the grace marks given to them, is not supported by any rules or regulations either in the University Calendar or other regulations framed in this regard. The learned counsel for the petitioner, in the course of his arguments, referred to Rules Nos. 11 and 12 of the University Calendar, in support of his above contention. The counsel appearing for the opposite side vehemently opposed the above argument, including an amendment, placed on record, in the rules referred to by the learned counsel for the petitioner. The relevant rules Nos. 11, 12 and the amendment referred to by the respondents' counsel, are usefully reproduced:‑

"

11. The minimum number of marks required to pass in each subject whether compulsory or elective shall be 33 per cent. In subjects where there is a practical, this percentable shall be required in the practical as well as in the written and practical examination separately. However, if a candidate fails, in a subject or part thereof by not more than three marks, he shall be deemed to have passed the examination: Piovided that grace marks mentioned in the preceding paragraphs shall be given only to those candidates who appear in all the subjects but not to those who appear in one or two subjects only.

12. No candidate who passes in II Annual Examination shall be entitled to a scholarship, a prize or medal. Amendment: That B.A/B.Sc. candidates who fail in one subject or more by 5 marks or less, be declared successful by adding the additional marks up to 5 marks and so added additional marks deducted from other passing subjects. This concession be made applicable to those candidates who take the examination in all subjects at one time or appear in the failing subjects. This concession will be graced once in the examination. " A critical examination of the above rules reveals that those do not place any restriction on a candidate to contest for the merit position or otherwise for the authorities to consider him for the merit position. Additionally, the above -referred rules have been amended and the words "he shall be deemed to have passed the examination", mentioned in rule 11, pressed by the learned counsel for the petitioner in support of his assertions, have been deleted through an amendment mentioned above. Therefore, even if it is proved that the respondents were given grace marks in passing the said examination, it does not disqualify them to contest for the merit position.

6. The learned counsel for the petitioner has challenged the jurisdiction of respondent No.5 and the validity of the orders passed by .the President of Azad Jammu and Kashmir, in appeal. The question whether respondent No.5 has lawful competence under the aforesaid Act is left to be resolved in some other appropriate case as the petitioner cannot agitate this point in the instant petition as he himself invoked the jurisdiction by filing a review petition before respondent No.5, in the hope that the might succeed but being unsuccessful, he challenged the jurisdiction of respondent No.5 through this writ petition. It may be observed that in the matter of discretionary relief, the Court is entitled to look at the conduct of the petitioner and to refuse the relief if it finds that the petitioner himself stood by at the proper time in the hope that he might achieve a favourable result. Reliance in this regard is placed on a Full Bench judgment of Lahore High Court recorded in the case titled ' Malik Muhammad Din v. Babu Fazal Karim and others PLD 1968 Lah. 544 wherein it is held:‑‑‑ "‑‑‑There is substance in Raja Said Akbar's contention that the petitioner participated in the election in the hope of being elected, and is aggrieved by the alleged irregularity in procedure only because he has not succeeded. The learned counsel for the respondent referred us to Haji Ghulam Nabi v Settlement and Rehabilitation Commissioner, Karachi and others PLD 1962 Kar. 786; Ghulam Mohy‑ud‑Din v. Chief Settlement Commissioner, Lahore and others PLD 1964 SC 829 and Aziz‑ur Rehman Chaudhary v. Nasiruddin etc. In support of his submission that before granting any relief to the petitioner we must take note of his own conduct in participating in the election without objecting to the irregularity in the candidature of the contesting respondent. The authorities cited by Raja Said Akbar, although not relating directly to election matters, do lend support to his contention that in the matter of discretionary relief under Article 98 of the Constitution the Court is entitled to look at the conduct of the petitioner and to refuse this relief if it finds that the petitioner himself stood by at the proper time in the hope that he might achieve a favourable result by participating in the alleged irregular proceedings."

7. It may also be mentioned that the impugned Notification, dated February 19, 1994, Annexure 'E', is found to have been issued in accord with equities of the case as it satisfies the requirements of rules governing it. C Therefore, the order is not open to attack through writ petition. The proposition finds support from Pir Muhammad Farid Jan's case PLD 1965 SC 399 wherein it is observed:‑‑‑ "‑‑‑the impugned order, therefore, appears to us to be in accord with the equities of the case and no ground has been made out which would justify interference by this Court. It is true that under Standing Order No. 10, a minor, as such, is not disqualified from applying for land, even where no Court Guardian has been appointed for him, but that does not mean that a rich father can utilize his minor sons' names, for enriching himself further. This is precisely what the impugned order safeguarded against and it was, therefore not open to attack in writ jurisdiction of the Court."

8. The petitioner's assertion with regard to respondent's time‑barred appeal, is also found to have no substance as the same is contradicted by the documents on record, particularly Annexure ' D/7' which is a certified copy of the letter written to the Secretary Law, Azad Government of the State of Jammu and Kashmir, in respect of the said appeal, on January 1, 1993. Similarly, the petitioner's claim for being condemned unheard, also merits no consideration for the reason recorded in the relevant order and also in view of the fact of petitioner's filing a review petition against the order assailed through this writ petition.

9. In view of the above discussion, the writ petition is found to have no substance in it which is hereby dismissed. A.A./87/AJ&K Petition dismissed.