1997 PLP 43 (CLC)

3. The petitioner submitted an application for re‑checking of the answer book in Paper No. VI. He mentioned in the application that in all the three examinations in which he appeared in the LL.B. Examination, he was stated to have secured 36 marks in Paper No.VI each time. No action was taken on this application. He then applied for re‑evaluation of his paper which was also recommended by the Principal of the Punjab University Law College in the following words:‑‑ "This is rather a peculiar case. The boy has failed three times in the same paper. Each time he has secured 36 marks. Every time he has been getting very high marks, nearly 70 % . This is beyond my understanding. The student is not only puzzled but is very upset. We are puzzled too. Proper probe into the matter is needed. Strongly recommended for re‑avaluation and the reason for this happening." He had also requested for the grant of grace marks under Regulation No. 4 enabling him to pass the LL.B. Examination. Since no action was taken by the respondent‑University on the repeated requests of the petitioner, he filed the present writ petition.

4. The respondent‑University filed parawise comments on the direction of the Court wherein the stand was taken that the petitioner was not entitled to the grace marks under amended Regulation No. 4 of the University. Regulation No. 4 regarding the LL.B. Examination was amended in 1970 but was notified on 12‑3‑1975. Regulation No. 4 is reproduced hereunder:‑‑ "EXISTING REGULATION: Every candidate shall, in order to be deemed to have passed this examination (whether taken in May or in September) be required to obtain forty per cent. of the maximum number of marks allotted to each paper, and forty‑five per cent in the aggregate: Provided that a candidate, who passed in the aggregate but fails in one paper by three marks or less, or a candidate who passes in all the papers but fails in the aggregate by three marks or less, shall be deemed to have passed the examination: Provided further that no candidate who passes in the examination in September shall be entitled to any prize or medal. Successful candidates who gain sixty per cent. of the aggregate number of marks or more shall be placed in the first division and all the rest in the second division. AMENDED REGULATION: Every candidate shall, in order to be deemed to have passed this examination (whether taken in May or September) be required to obtain forty per cent. of maximum number of marks allotted to each paper, and forty‑five per cent. in the aggregate: Provided that a candidate shall be deemed to have passed if he (a) fails in any individual paper by a margin of 5 marks; (b) fails in the aggregate by a margin of 5 marks; (c) fails in more than one paper by a margin which can be made up by distribution of five marks over the papers/aggregate in which he fails: Provided further that a higher class shall be awarded to a candidate who miss it by a margin of 5 marks or less: Provided further that the grace marks shall not be awarded to any candidate for the purpose of enabling him to get exemption in any paper and to those who appear in the examination in parts: Provided also that no candidate who passes in the examination held in September shall be entitled to any prize or medal. Successful candidates who gain sixty per cent. of the aggregate number of marks or more shall be placed in the first division; and all the rest in the second division."

5. Learned counsel for the petitioner contends that non‑action on the application submitted by the petitioner to the respondent‑University for re evaluation/re‑checking of his Paper No. VI amounted to refusal without justification. Alternatively, he contended that the third proviso to the amended Regulation No. 4 is unwarranted in law and in any case discriminatory. According to 1st proviso to the amended Regulation No. 4, a candidate is deemed to have passed if he fails in any individual paper by a margin of 5 marks whereas this benefit is not given to those candidates, although failing by five or less marks, who have appeared in the examination in parts.

6. Thus the benefit given to the students failing in a paper by five or less marks is not given to those students who pass the examination in parts. Accordingly 3rd proviso to Regulation No. 4 has deprived the petitioner of the benefit given to other students under 1st proviso to Regulation No.4. According to 1st proviso the benefit of 5 grace marks is given to a student who fails in one or more papers, provided the deficiency can be made up by distribution of five grace marks over the failing papers.

7. The proviso is considered to be an exception to the general rule. As was held in Pramatha Nath Chowdhury and 17 others v. Kamir Mondal (PLD 1965 SC 434) by the Hon'ble Supreme Court that: "A proviso, as is generally accepted, is in the nature of an exception to the substantive provision to which it has been appended. In the present case, this proviso has been appended to a definition clause. Normally a definition has the effect of a declaratory provision and governs all cases coming within its ambit. In the present case, however, the difficulty that has been created is by the language of clause (ii) of this proviso. The words 'has been' in this proviso cannot of something done in the past but the words ' is held' appearing in the same clause being in the present tense would seem to refer to something that is to be done in the present. Since the clause uses both expressions in the alternative in the same clause, the question naturally arises as to what did the Legislature intend by the use of such words." As to the principle on which a proviso has to be interpreted, the Hon'ble Supreme Court in East and West Steamship Company v. Pakistan (PLD 1958 SC (Pak.) 41 at page 73) has observed as follows:‑‑ "In principle also, the words of a proviso are to be construed strictly and confined to the special case which its words enact; it would be wrong to construe those words as being co‑extensive with those used in the purview, particularly where the effect might be of bringing about a repeal of the purview."

8. There is no doubt, particularly in the context of the present case, the 3rd proviso which disallows the benefit of granting 5 grace marks to the candidates under 1st proviso of Regulation No. 4, refuses the same benefit to a candidate who has appeared in the examination in parts. The history of the present case is such that the beneficial construction of Regulation No. 4 as amended has to be made as a whole so as to give benefit of the grant of five grace marks to every candidate. It will be not only harsh but also discriminatory if this benefit is denied to the petitioner who has otherwise secured very high marks in other papers. The contention of the learned counsel for the petitioner that all the three times he was given 36 marks each time in Paper VI indicates that "something is wrong somewhere".

9. The instant case is also the one which is governed by the beneficial construction and equitable considerations. Therefore, applying the principle of beneficial construction and also the rule of interpretation laid down by the Hon'ble Supreme Court in the aforesaid cases, I hold that 3rd proviso to amended Regulation No.4 to the extent where the benefit of five grace marks is not granted to those candidates who appear in the examination in parts, is not valid as it is discriminatory and in direct conflict with lit proviso giving benefit of five grace marks to all candidates in the circumstances mentioned therein. Resultantly, this petition is accepted and respondents Nos. 2 and 3 are directed to give the petitioner grace marks in accordance with 1st proviso of the amended Regulation No. 4 of the University Calendar relating to LL.B. Examinations and declare his result of LL.B. Examination accordingly. No order as to costs. A.A./M‑166/L . Petition accepted.