2002 PLP 3344 (YLR)

Through this Constitutional petition, the petitioner has sought a direction to the respondent/university to award him three grace marks in Physics Theory Paper of B.Sc. Brief facts of the case are that the petitioner appeared in B.Sc. 1st Annual Exam. of 1999; he failed in (i) Math. 'A' (ii) Math. 'B' and also in (iii) Physics, while he only passed in Pakistan Studies, Islamiyat and English; the petitioner did not take 11 Annual Exam. of 1999, in failing subjects. due to his alleged ailment. The petitioner appeared in the 1st Annual Exam. of 2000 in the papers he failed i.e. Math. 'A' Math. 'B' and Physics; unfortunately, the petitioner again failed in all the three papers. The petitioner again appeared in 11‑Annual 2000 in failing subjects and passed in Math 'B' while he failed in Math. 'A' and Physics. The petitioner availed his last and final 5th chance of 1st Annual, 2001 and took examination for Math. 'A' and Physics, the failing papers; he passed in math 'A' as well as practical of the Physics but he failed in Physics Theory paper by three marks, hence, he was declared "failed as a whole" as he has availed all the chances. The petitioner applied to the respondent for grant of three grace marks under Regulation No.4 of the Punjab University Calendar Vol: 11 of the Bachelor of Science Exam: (Pass Course) Chapter I (hereinafter to be referred as Regulation No.4) as adopted by Baha‑ud‑Din Zakariya University in 1975 but the petitioner did not receive any response, hence, this petition. The learned counsel for the petitioner submits that under amended Regulation No.4 of B.Sc Exam. of the Punjab University, Calendar which has not been adopted by the Baha‑ud‑Din Zakariya University, the petitioner is entitled to live grace marks which reads as under:‑ " That B.A./B.Sc. candidate who fail in one subject or more by live marks or less be declared successful by adding the additional marks upto 5 marks and so added additions' 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 appeared in the failing subjects. This concession will be granted once in the examination." The petitioner's counsel in this respect also placed reliance upon the judgment reported in 1999 CLC 720, "Sheraz Anwar v. B.Z. University." The respondent/University has filed report and parawise comments. The respondents have taken the stance that under Regulation No.4 as originally framed by the Punjab University and adopted by the B.Z. University Multan in the year 1975, there is no such concession available to the B.Sc students who take examination in parts. Further submits that in fact Punjab University has amended the said Regulation notified vide Registrar's Letter No. 106/G.S., dated 19‑8‑1995 (The amendment will take effect from Annual Exam. 1997) but the B.Z. University has not adopted the amended Regulation No.4, hence, the petitioner is not entitled to the said concession. In this context, reference has been made to the Regulation No.4 which has been adopted by the B.Z. University in 1975 which reads as under:‑ "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 passed 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 subject at one time." The learned counsel for the respondent has retied upon the judgment reported in 1991 MLD page 2546 titled as Nusrat Elahi and 41 others v. The Registrar, Lahore High Court and 16 others and 2001 YLR 2900 "Maqsood Hassan v. B.Z. University". The learned counsel for the respondent has further argued that in fact in the judgment reported in 1999 C.L.C P.720, referred by the learned counsel for the petitioner, B.Z. University was not represented by its counsel hence the version of the respondent/University has not been taken note of and the ratio of the said judgment is not applicable to the case in hand. Heard. Record perused The facts of the case are not in dispute. The petitioner had admittedly taken B.Sc Exam by parts and B.Z. University, Multan has not adopted the amendment in Regulation 4 made by the Punjab University in 1996, but has only adopted an amended Regulation 4 of the Punjab University in 1975; hence the petitioner can take benefit of Regulation 4 as it stands adopted by the respondent/University and cannot take benefit of amendment made therein by the Punjab University. The case of the petitioners is not covered under Regulation 4 as adopted by the B.Z. University. Furthermore, in case law referred by the learned counsel for the petitioner i.e. 1999 CLC P.720, this fact was not brought to the notice of this Court that B.Z. University has not adopted the amendment made by the Punjab University in the year: 1996 in the Regulation No.4 and further B.Z. University was not represented in the said case by its Legal Advisor. In the circumstances, there is no merit in this Constitutional petition therefore the same is hereby dismissed. S.I.Q./M‑1066/L Petition dismissed