1999 PLP 720 (CLC)

The petitioner appeared in B.A. Examination in 1st annual, IInd annual, 1991, 1st annual and IInd annual, 1992 and 1st annual, 1993 leaving no chance to appear again and has missed the bus by one number in English Paper getting 65 marks out of 200 marks.

2. The petitioner has submitted that under section 52 of the Baha‑ud‑Din Zakariya Act, 1975, the Rules and Regulations made or deemed to have been made under the University of Punjab Act, 1973 and in force at the commencement of this Act shall also so far as consistent with this Act and so. far as applicable, have effect as if they were made under this Act and in pursuance to the said section. Regulation No.7 of the Punjab University. Calendar, 1977‑78 was adopted by the Baha‑ud‑Din Zakariya University, according to which 5 marks could be granted to a candidate who fails in one subject or more by 5 marks or less, and that the cases of the University are to be dealt with in a parental manner and that the difficulty in this case is such whereafter, the whole career of the petitioner will be ruined, if the harshness is not removed.

3. The representative of the respondents has vehemently opposed the contention of the petitioner on the plea that a pandora box will be opened if such discretion is exercised though on facts, he could not controvert the plea of the petitioner.

4. I have given due consideration to the valuable arguments on both the sides.

5. The relevant provision of the Baha‑ud‑Din Zakariya University Act, 1975 is section 52 and the relevant regulation of the Punjab University is Regulation No.7 which are reproduced as under:‑‑ "

52. Saving‑‑‑ Until provision is made under this Act, the Statutes, the University Ordinance, Rules and Regulations made or deemed to have been made under the University of Punjab Act, 1973 and in force at the commencement of this Act shall so far as consistent with this Act and so far as applicable, have effect as if they were made under this Act as Statutes, Rules or Regulations by the appropriate Authority." Regulation No.7 of the Punjab University prior to amendment as printed at page 124, Vol. II of Punjab University Calendar, 1977‑78 reads as follows:‑‑ "The minimum number of marks required to pass this examination shall be thirty‑three per cent. in each subject (separately in written, practical) provided the candidate who passes in two subjects but fails in one subject or part thereof by three marks or less shall be deemed to have passed the examination provided that he takes examination in all the subjects at one time." The above regulation has since been amended, revised and implemented by the Punjab University as confirmed by the Admn. Officer on 3‑4‑1996 (Annexure C at page 18 of the present writ petition). The revised version of Regulation 7 reads as under:‑‑ "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 who take the examination in all the subjects at one time or appear in the failing subject/s. This concession will be granted once in the examination. " In a similar circumstance in the case of Allia Safdar v. University of Punjab and others 1998 CLC 235 where a candidate had failed in her M.A. Examination just for want of one mark having availed her last chance, my learned brother Tanvir Ahmad Khan, J. observed as under:‑‑ "The Board of Examiners is empowered to consider the case of those candidates who are on the borderline." Regarding the jurisdiction of the University, it is by now well‑settled that it is a parental jurisdiction and where the authority is empowered to pass any order should lean towards the welfare of the students keeping the discipline and the standard intact without being harsh and without showing any discrimination. Another important element is the power to relax the rules where it is found that the objective of the law and the rules cannot be realised without such relaxation. The power is not merely to decorate the statute book, it is for use at proper and relevant time in cases of hardship. Marking of papers in Humanities/Arts is never 100 per cent. inflexible. The papers of science/arithmatic etc. are such where marking can be 100 per cent. inflexible. I am conscious of my judicial restraint and do not want to conduct a roaving inquiry but my judicial conscience is clear that whatever is on the record of this petition, it shows that this is a case where the respondents should have exercised the power to remove the harshness of the petitioner who has earned the following marks:‑‑ . English 65/200 Islamic Studies 37/60 Pakistan Studies 17/40 Political Science 119/200 Islamiat 108/200 Persian 63/100 409/800 and the principle is that where a grace mark is given in one paper that is reduced from any other paper. In this manner, the concession does not change the total marks which in this case shall remain 409/800. Under section 16(4)(v) of the Baha‑ud‑Din Zakariya University Act, 1975, respondent No. l has the power to make such arrangement for the scrutiny of papers, marks and results as he may consider necessary. He should not feel g helpless in the matter of award of one grace mark to the petitioner in the peculiar facts and circumstances available in this case. The respondent No. l is, therefore, directed to exercise his power under the aforesaid provision of law to ensure that the provisions of the Act, Statutes, Regulations and the Rules are faithfully observed in order to promote teaching, research, publication, administrative and general efficiency and good order of the University. The petition is allowed in the above terms with no order as to cost. H.B.T./S‑279/L Petition allowed.