1996SCMR1592 (PLP)

MUKHTAR AHMED JUNEJO, J.

This is an appeal with leave of this Court filed by appellant Riaz Muhammad against the judgment dated 17-10-1992 delivered by a Division Bench of the Peshawar High Court in Writ Petition No. 18 of 1990. . Matter relates to admission of appellant Riaz Muhammad Sherani in the Engineering Degree Course of the University of Engineering and Technology, N.-W.F.P. at Peshawar (hereinafter mentioned as the University) against one of the two seats meant for candidates from Frontier Region of Dera Ismail Khan for the Sessions 1989-90. The appellant passed F.Sc. in the Annual Examination, 1988 securing .604 marks. To improve his position, the appellant reappeared in F.Sc. Annual Examination, 1989 and passed it securing 759 marks.. Before this, the appellant appeared in F.Sc. Annual Examination 1987 and in F.Sc. Supplementary Examination, 198,7 but failed in both, as per the parawise comments by the respondent No.

1. In response to an advertisement in Press by the Dean of the University, the appellant moved for admission in the University and his name was put at Serial No.1 in the list of recommended sent by Deputy Commissioner, D.1. Khan to the Commissioner, D.I. Khan, in whose office 30 marks were deducted from the marks secured by .the appellant, reducing his position in the merit list from Serial No.1 to Serial No.4. Hence the appellant filed in the Peshawar High Court Writ Petition No. 18 of 1990 wherein the prayer was made as follows:-- "That on acceptance of this Constitutional Petition this Hon'ble Court may be pleased to declare the preparation of revised list in the office of respondent No.1 where in the petitioner has been placed at Serial No.4 of the merit list to be illegal, mala fide in excess of the lawful authority of Commissioner, D.I. Khan Division and of no legal effect against the petitioner and the petitioner be held entitled for admission in the Engineering Universities of Pakistan against the reserved seats of FATA/FR, D.I. Khan on merits in accordance with law. This Honourable Court may further be pleased to direct respondents Nos. l, 4, 5, 6 and 7 to consider the admission of the petitioner on merits without deducting 30 marks. " The writ petition was contested by respondent No. 1, who in his comments took stand that since the appellant had passed F.Sc. in three attempts, hence 30 marks were deducted from his total marks on the formula o. 10 marks for each attempt/additional examination, as per para. 13 of the Prospectus for admission to the University for the Sessions 1989-90. It was added that the merit list was prepared by the Government of N.-W.F.P. on merits and not at the dictates of the Deputy Commissioner or the Commissioner, D.I. Khan. That the deduction of marks was to be made from the total marks in light of the aforesaid Prospectus. Allegations of mala fides pleaded in the writ petition were denied. Provisions in the Prospectus in respect of deduction of the marks were defended to be correct. Facts about appellant's passing F.Sc. firstly in 1988 with 604 marks and then in 1989 with 759 marks have been mentioned in the impugned judgment dated 17-10-1992 under which writ petition of the appellant was dismissed. Mr. Abdul Aziz Kundi, learned counsel for the appellant argued that the appellant applied for admission in Engineering University during the Sessions 1989-90 on the basis of having passed F.Sc. Examination in 1988 and in 1989 and hence only 10 marks could be deducted from his total marks for the purpose of considering his admission in the University. On the other hand, Mr. Fateh Muhammad Khan, learned counsel for respondents 1 to 3 contended that 20 marks were to be deducted from the marks secured by the appellant on account of his having passed F.Sc. in three attempts viz. Annual Examination, 1987, Supplementary Examination, 1987 and Annual Examination, 1988, and that another 10 marks were to be deducted from the appellant's total marks for having appeared in the Annual Examination, 1989 to improve his position. The controversy in the case has arisen because of the difference over interpretation of para.13 of the Prospectus for Admission to N.-W.F.P. University of Engineering and Technology, Peshawar for the Sessions 1989-90. Said para. reads as below: "

13. Adjustment of Marks: In order to determine the merit, the total marks obtained by a candidate shall be adjusted in the manner given below: (a) For those who have passed B.Sc. Examination: (i) Ten marks shall be deducted for each additional examination taken. (b) For those who have passed F.Sc. Pre-Engineering. (i) Ten marks shall be deducted for each additional examination taken. (c) For those who have passed. F.Sc. (Pie-Medical) Examination: (i) Ten marks shall be deducted for each additional examination taken for passing F.Sc. Pre-Medical Examination even for Biology only, and (ii) Ten marks shall be deducted for each additional examination taken for passing Mathematics as additional subject. (d) For those who have passed F.Sc. Examination by parts i.e. Part I and Part II Examination: (i) Ten marks shall be deducted for each additional attempt made to pass any or all the subject(s) of Part I and/or Part II. (e) Ten marks shall be deducted for each additional examination taken for improvement of division/total marks. (f) Twenty marks shall be added to the total marks as adjusted above, if the candidate has fulfilled the requirements of National Cadet Corp Amended Act, 1973. The candidate must submit the certificate of service of N.C.C. issued by Director-General, National Guards on the prescribed printed form. No other certificate/document in lieu thereof shall be accepted. " As per para. 13(d)(i) 10 marks shall be deducted for each additional attempt made to pass any or all the subjects of Part I and Part II of F.Sc. Examination. In the instant case, first attempt to pass F.Sc. Examination was made in 1987 Annual Examination and the second was made by appearing in Supplementary Examination, 1987 while the third attempt was made by appearing in Annual Examination, 1988. By last attempt the F.Sc. Examination was cleared, but 10 marks for each of the attempts made, in appearing in Annual Examination, 1987 and Supplementary Examination, 1987, will have to be deducted. As per para. 13 (e) 10 marks shall be deducted for each additional examination taken for improvement of division/total marks. Admittedly the appellant appeared in Annual Examination, 1989 for improvement of division and for securing more marks. Hence further 10 marks will have to be deducted from the total marks secured by the appellant. After such deductions, the position of the appellant stands reduced and in order of merit he would stand behind the respondents Nos.8 to 10 as observed by the High Court in the impugned judgment. It is difficult to agree with the learned counsel for the appellant that the appellant who appeared in F.Sc. Annual Examination, 1987 and in Supplementary F.Sc. Examination, 1987 but failed in some of the subjects, can be excepted from the rule about deduction of 10 marks for having made an additional attempt in taking F.Sc. Examination. Learned counsel for the appellant conceded that 10 marks alone could be deducted from the total marks obtained by the appellant, for having re-appeared in the F.Sc. Annual Examination, 1989 for the purpose of improving his position. The view taken by the High Court appears to be in consistency with the relevant provisions mentioned in para. 13 (ibid), and there is no scope for interference with the impugned judgment, where case of the appellant has been recommended for sympathetic consideration on extra-legal grounds. There can be no quarrel with such recommendation. Since no case has been made out for interference with the impugned is dismissed. (Sd.) Sajjad Ali Shah, C.J. (Sd.) Fazal Ilahi Khan, J. (Sd.) Mukhtar Ahmad Junejo, J. FAZAL ILAHI KHAN, J.

I agree with the judgment proposed to be delivered by, my learned brother Justice Mukhtar Ahmed Junejo, J. but will add :hat in the Prospectus for the year 1990-91 paragraph 13, pertaining to adjustment of marks, reproduced in the judgment was amended and re-cast as under:

13. Adjustment of Marks.--In order to determine the merit, the total: marks obtained by a candidate shall be adjusted in the manner given below: (a)

(b)

(d) Ten marks shall be deducted from the qualifying marks if the examination has been taken for improvement of division/marks, and the admission is sought on the basis of improved marks. In case of improvement of marks/division clauses (a) and (b) shall not be applicable. (e)

As in the instant case admission was sought on the basis of marks obtained in the examination for improvement, therefore, the provision regarding deduction of marks under para. 13 (a) and (b) were not made applicable in the said Prospectus. This amendment apparently resolved the controversy as was raised by the appellant in the writ petition. On such ground, therefore, when, the appellant has been admitted and has continued his studies for more than 4 years the observation of the learned High Court to accommodate the appellant on compassionate ground appears to be just and proper. (Sd.) Fazal Iiahi Khan, J. SAJJAD ALI SHAH, C.J.

I have gone through the judgment of my learned brother Mukhtar Ahmed Junejo, J., and the short note of my learned brother Fazal Ilahi Khan, J., who has agreed with Mukhtar Ahmed Junejo, J., and in the result dismissed the appeal. &The difference between the learned Judges is whether adjustment of the appellant is to be done in accordance with paragraph 13 of the Prospectus for the years 1989-90 or 1990-91. If calculation is done under paragrpah 13 of the Prospectus for the year 1989-90, then 30 marks are to, be deducted, for the appellant made two attempts to pass the examination and third attempt to improve the marks and for each attempt 10 marks were to be deducted. This is so held by the High Court in the impugned judgment and the finding is upheld by my learned brother Mukhtar Ahmed Junejo, J. I am of the view that the appellant appeared for, the Session 1989-90 and, therefore, the Prospectus of that year would apply to him and he cannot be allowed the benefit of the Prospectus for the year 1990-91. In any case, after dismissing the, writ petition of the appellant, the High Court has made recommendation that since the appellant has completed three years of his Engineering Degree Course, his case should be sympathetically and favourably considered by the Engineering University on compassionate grounds to allow him to complete his degree course since he halls from a backward frontier region tribal area. This recommendation is valid and should be acted upon and no exception is taken to it by my learned brother Mukhtar Ahmed Junejo. In the, result, the appeal is dismissed. (Sd.) Sajjad Ali Shah, C.J. A.A./R-285/S Appeal dismissed.