1985 PLP 2459 (CLC)

Ghulam Sarwar, the petitioner, has filed this constitutional petition under Article 9 of the Provisional Constitution Order, 1981 for a declaration to the effect that the order, dated 1-10-1984 passed by the. Controller of Examination, Bahawalpur be declared without lawful authority and of no legal effect.

2. The relevant facts of this case are that the petitioner appeared in the F.Sc. Pre-Medical Group Examination held in Spring, 1984. He appeared in the subject of Chemistry and failed. He submitted another form for appearing in the subsequent examination and his form was rejected on the ground that under the New Scheme of studies, a science group student was not eligible to appear privately. The petitioner has challenged the said order by stating that he could avail of four chances within a period of 25 months and could not be debarred from taking his Intermediate Science Group Examination under the rules.

3. The respondents have filed the written statement and they rely on rule 9 of Chapter II of the Rules Part of the Board Calendar which is as follows:-- (1) "To qualify for the grant of the Intermediate Certificate a candidate shall be provided with a maximum of four consecutive opportunities within a period of 25 months. Provided the twenty-five months in which a candidate must avail of the four chances to pass an examination in parts will commence from and include the examination in which a candidate appears for the first time. (2) If a candidate fails to qualify the examination in the first, second or third attempt, he shall be granted exemption in the subject/ subjects in which he has passed in an attempt or attempts, and allowed to re-appear in the subsequent attempt in the subject/ subjects in which he has failed. Such a candidate on qualifying the examination shall be granted a certificate of having passed the examination "by parts". (3) No additional examination opportunity shall be provided in lieu of an opportunity missed for any reason. (4) A candidate who fails to qualify the examination in the period of 25 months i.e., four consecutive attempts, may repeat the examination as a fresh candidate, in any combination of subjects. (5) A candidate who is blind or deaf and dumb may qualify the examination without any restriction to the number of examination opportunities/attempts referred to above and they will be exempted from re-appearing in the papers in which they have once passed. (6)(a) A candidate who appeared but failed in one or more subjects will be eligible to re-appear in the same subjects only unless he appears as a fresh candidate (full combination) in any subsequent examination. (b) Change of subject/s in deserving cases may be allowed by the Controller of Examinations within the same Group. (7)(a) A candidate who has failed to appear in one or more than one subjects of an examination, shall be treated to have failed to secure pass marks in the subject/subjects. (b) A candidate who failed to appear as a whole, he will be treated absent from the examination and no Result Card will be issued. (8) A candidate accepted for an Annual Examination who remained absent throughout the examination will be permitted to appear in the next examination in all the subjects on submission of fresh form and fee."

4. The learned counsel for the petitioner has also relied on rule 9 ibid and has contended that the petitioner should have been permitted four chances to clear the examination, but only one chance has been provided to him and his application form was rejected when he endeavoured to appear for the second time.

5. Respondent No.1 has issued notification, dated 23-11-1984 Annexure 'D' which envisages that from Spring 1984 Examination, no private candidate or the science group student shall appear as a fresh candidate. It has further been added that those candidates whose chances remain intact under the Rules, shall be eligible for taking further examination and when those chances are exhausted, then a candidate of the science group shall not be eligible to take the examination afresh. With reference to the said notification the learned counsel for the petitioner has contended that the candidates who could avail of further chances, had been excepted from the said rule and the interpretation adopted by the Department is not binding on the law Courts. It may be noted that the said notification has two parts: (i) firstly, it debars a candidate of pre-engineering/pre-medical group to appear privately as a fresh candidate from Spring' 1984 Intermediate Examinations and (ii) secondly it extends a concession to those candidates who have not exhausted their four chances.

6. The case of the petitioner is covered by the first part of this notification and the construction adopted by the respondents must be endorsed. But it may be noted that the Board of Intermediate & Secondary Education, Bahawalpur (which shall hereinafter be referred to as the Board) has the power to regulate and decide all administrative matters and can lay down conditions for admission to its examination to determine the eligibility of the candidates and to admit them to such examination as embodied in section 10 of the Punjab Boards of Intermediate & Secondary Education Act, 1976. In section 21 of the said Act, it has been provided that the Board may make rule consistent with this Act and the regulations to provide for conditions for admission to the examination held by it and their eligibility for diplomas, certificates and titles.

7. Undoubtedly the Board wields rule-making power and under the said Act, it has framed rule 9 reproduced above which covers the case of the candidates of the Science group as well as of the Arts group. Para 1 of rule 9 (ibid) is very clear in its terms which provides a maximum of four consecutive opportunities to a candidate within a period of 25 months to pass the examination and the four chances include the examination in which a candidate appears for the first time. Para 2 deals with the exemption of subjects in which a candidate passes. Para 4 clarifies that after making four consecutive attempts, a candidate may repeat the examination as a fresh candidate in any combination of subjects. In short rule 9 grants a concession to avail of four consecutive chances within a period of 25 months. The Board has the power to enforce such rules. But it may be pointed out that rule 9 is in existence and a new notification has been brought forth when rule 9 ibid has not yet been modified or repealed. The rules carry the force of law and the notification Annexure 'D' is inconsistent with rule 9 given above. This notification, therefore, cannot be acted upon.

8. Furthermore, it may be stated that the application form of the petitioner was rejected by one Muhammad Akram, Incharge Examination Section and not by the Controller Examination. It has not been shown to me that Muhammad Akram, Incharge Examination Section was empowered to cancel the form of the petitioner or the Controller Examination had delegated him such authority. The impugned order, dated 1-10-1984 is, therefore, ultra vires and based upon a notification which is inconsistent with rule 9 reproduced (supra). I, therefore, accept this writ petition and quash the impugned order. The petitioner has taken the Intermediate Examination and he is entitled to get his result card from the Board. Due to the legal complexities involved in this petition, the costs shall not follow the event and I leave the parties to bear their own costs. H.A.K. Petition accepted.