1998 PLP 977 (CLC)

7. Biology 200 156 1100 766 The grievance being made in that as petitioner was not given question paper of Urdu Paper ' A' in terms of the option given at the time of admission form and instead was given a paper of the course which she had never studied for not fault of her own, and the Board be directed either to give her the average marks which she had obtained in other papers or she be awarded marks which she obtained in Paper ' B' of Urdu. The comments supplied by the Deputy Controller Examination of the Board are to the effect that as per rule 2.14 the candidates appearing for the improvement of division have to appear in current syllabus; that prior to the commencement of examination, parents of the candidates intending to appear in the examination for the improvement of their division, met the Chairman of the Board with a request that the candidates be allowed to appear as per the old syllabus meant for 1996; that question papers for the candidates of compartment cases were being prepared and the Chairman of the Board decided to club the cases of these candidates who were desirous of improving their division with compartment cases; that as the petitioner had given her option to appear in the old syllabus of 1996 as is evident from Annexure R‑II, she has no right to claim to be examined under the old syllabus which was in vogue in the year 1993. It was further submitted by the Board that the syllabus of Urdu Paper ' A' was changed in the year '1994 and no question paper under the said syllabus was prepared for the examination conducted in the year 1997. It was lastly contended that she had been studying Urdu Paper ' A' under the old course on account of her mistake and cannot take benefit of her own ignorance as the ignorance of law is no excuse. In view of aforereferred circumstances, according to the Board, there was no provision in the rules to allow petitioner's prayer. In support of the petition, learned counsel for the petitioner made the following submissions ;‑‑ (1) That as far as the petitioner is concerned, there was no confusion as she had clearly indicated her option to appear in the old course which admittedly was the course as was in vogue in the year 1993 in which she appeared in Annual 1995 and admittedly the course of all the subjects (including Urdu Paper ' B') in which she appeared in the year 1997 was the old course which was prevalent in the year 1993. (2) That the change of course of Urdu Paper ' A' according to the Board, took place in the year 1994 but the petitioner had no notice of the same nor she was ever asked about it as is evident from the admission form Annexure III with the comments submitted by the Board. (3) That the Board itself had allowed the candidates seeking improvement of division to appear in Urdu Paper ' A' in the old course in the year 1996. Petitioner has placed a copy of the question paper for Annual 1996 Examination in support of the aforereferred submission. Learned counsel for the Board has vehemently opposed the petition by submitting that in terms of rule 2.14, the petitioner had to appear under the current course but was given the option to appear in the old course of the year 1996 and so far as course for Urdu Paper ' A' , was concerned, the same was changed in the year 1994 and she had to appear under the said course in this paper; that the refusal to appear in the said course is not tenable. He referred to PLD 1962 SC 35 and 1984 SCMR 433 to contend that when the course has been changed, petitioner cannot claim to be examined under the old course and no exception can be taken to the examination held by the Board. I have heard the learned counsel for the parties and have given anxious thought to the arguments addressed at the Bar. Before dilating upon the merits of the issue raised in this petition, it is necessary to refer to rule 2.14 which has been annexed as R‑I by the Board and it reads as under:‑‑‑(enforced on 27‑4‑1995). "No candidate shall appear in the Intermediate Examination after having passed it. However, for the purpose of improving the aggregate of marks obtained by him/her previously, he/she may at his/her option, avail himself/herself of only one opportunity to appear in the examination in the same subject/group in the current courses provided that he/she must do so within a period of two years of the passing of the said examination, provided further that he/she has not appeared in any higher examination held by a Board or a University during the above period; provided still further that he/she shall not be eligible for the grant of concessional marks as mentioned in rule 2.12. Such a candidate, if successful in improving the aggregate of marks, shall be granted a fresh certificate of marks/grades on surrendering the certificate of marks/grades issued previously. A candidate as aforesaid shall not be eligible for the award of a scholarship or any other academic distinction on the basis of improved aggregate of marks. " Notwithstanding the aforesaid rule enjoining the candidates seeking improvement of marks to appear in the current course, it is not denied that the petitioner alongwith other candidates were allowed to appear under the old course in Annual, 1997. The slip attached with the comments as Annexure R‑III shows that on being asked by the Board, she had given her option to appear under the old course. The term "old syllabus" was, however, not qualified initially, yet it seems the "Examination 1996" was written on the top of the word "Old Syllabus" and the rest of the language of the said slip is printed. The addition of the expression "Year 1996" does not in any manner advance the case of the respondent/Board as admittedly, the petitioner had appeared in all the remaining subjects (Except in Urdu Paper "A") in Annual 1997 as per the course which was in vogue in the year 1993. In fact, this was the course in which she appeared in the Annual 1995 (as well), the result of which prompted her to seek improvement and she appeared in Annual 1997. The argument of learned counsel for the Board that since the course of Urdu Paper "A" was changed in the year 1994, therefore, after Annual 1995, no candidate was allowed to appear in the said course (of the year 1993) is belied by the Deputy Controller of the Board who when confronted with Urdu Paper "A" of Annual 1996 confirmed that the said paper was under the old course as was in vogue in the year 1993 and was meant for compartment cases as also for those candidates who were seeking improvement in their marks. This shows that the Board had allowed the candidates to appear under 1993 Urdu course Paper "A" even in Annual 1996. The wording of admission form (Annexure III) as also her option given in Annexure R‑II with the comments and by the aforereferred practice of the Board had rightly persuaded her to prepare for Urdu Paper "A" under the old course (of the year 1993) but she received a rude shock in the examination centre, when she was asked to attempt question paper "A" of Urdu under the new course which was introduced in the year 1994 for which petitioner had neither any notice nor she ever studied. The petitioner has been misled by the Board itself and she cannot be made to suffer for no fault of her own. The lapse of the Board is evident from the following facts and circumstances:‑‑‑ , (i) No course was changed in the year 1996, therefore, the addition of word " 1996" on top of the old syllabus in Annexure R‑II to the comments was misleading and admittedly the expression " 1996" was added subsequently as it was not printed in Annexure R‑II. (ii) Admittedly, petitioner had given her option in writing on Annexure R II (with the comments) which was to the effect that she will appear in old course which meant the course in which she had appear in Annual 1995 in Urdu Paper "A" and it was the course which was in vogue in 1993. Having allowed the petitioner, the option to appear in the old course, the Board cannot take recourse to rule 2.14 to contend that she had to appear in the current course. (iii) The fact that the Board has been permitting the candidates seeking improvement to appear in the old course of 1993 is evident from Urdu Paper "A" of Annual, 1997. This is notwithstanding the fact that the rule 2.14 came into force on 27‑4‑1995. The explanation given by the Deputy Controller of the Board that the Board not permit the petitioner to appear in Annual 1997 in old Urdu Course (Paper "A") as no compartment student was appearing in Annual 1997 is no ground to refuse her the said concession as the same is neither supported by nothing the rules nor she was told about this at the time of submission of admission form. Notwithstanding the aforereferred conduct of the Board, the Board has expressed its inability to prove any relief to the petitioner as it is contended that there is no provision for the same in the rules. Reluctantly, the Deputy Controller of Board came out with the suggestion that this Court may award her the same marks that she has obtained in Urdu Paper "A" when she appeared in Annual 1995 which are 64 out of

100. I am afraid that may not be just in the facts and circumstances of the case as petitioner has worked hard for two years to improve her division and she has shown her merit by securing more than 766 marks in all the subjects of Annual, 1997. The last date for receipt of applications for admission in M.B.,B.S. Course is 6‑12‑1997. It would be rather harsh to ask her to reappear in Urdu Paper "A" at this point of time and further more than is no provision for that in the rules either. . In the afore referred circumstances, equity would weigh in favour of the petitioner and technicalities cannot be pressed into service to obstruct the process of justice. The dictum laid down by the Hon'ble Supreme Court in Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 Supreme Court 678) is very instructive wherein at page 692 it was held as under:‑‑‑ "The logic of words should yield to the logic of realities, particularly while dealing with adjustment of conflicting authorities. Of course, it is equally important to bear in mind the well‑known maxim that equity follows the law, a maxim acted upon by the Court of Chancery in England, on cases where the law clearly supplies it has to be given full effect howsoever harsh it might appear to be. Normally, however legal technicalities should not be allowed to stand in the‑way of justice unless they present a hurdle brushing aside which might lead to unsettlement and uncertainty of law. " Respectfully following the ratio laid down in the aforereferred precedent case- law; persuaded by the calls of equity and substantial justice, I am inclined to allow this petition and direct that the petitioner shall be awarded marks in Urdu Paper "A" Annual, 1997, equivalent to the average marks that she has obtained in other subjects in the said examination. There shall be no order as to costs. A.A./H‑46/L Order accordingly