1995 PLP 1500 (CLC)

The learned counsel for the petitioner has referred to 1993 CLC 1540 (Messrs Industrial Development Bank of Pakistan v. Messrs Sarela Cement Limited Company) to contend as the letter/result card even if sent was admittedly not sent through registered post and, therefore, no presumption of service could arise. It was further submitted that the petitioner came to know about the result only when she visited the University and contacted respondent No.2 and she was told that she, in her third attempt, had passed in Paper VI but failed in Paper IV and further that the examination which was then in progress (Second Annual, 1993) offered her the last chance to appear and clear Paper IV.

4. The comments submitted by the respondent University are to the effect that merger of Second Annual Examination, 1992 and First Annual Examination, 1993 took place on account of circumstances beyond the control of the University and the same was done by the Order of Vice‑Chancellor who is authorised to do so under section 15 (3) of Islamia University, Bahawalpur Act, 1975.

5. The learned counsel for the respondents submitted that the petitioner did appear in the Second Annual Examination, 1993 but failed in Paper IV. She was duly intimated about her result in the Second Annual, 1993 and she deliberately missed her chance of appearance in First Annual, 1994. Further, submitted that the petitioner had four chances to clear the examination and having availed of the same, she could not demand yet another chance in derogation to law and rules. Reliance was placed on 1994 CLC 565 (Muhammad Shahzad v. Nishter Medical College, Multan).

6. I have heard the learned counsel for the parties and have also gone through the relevant law and the rule applicable.

7. As per the Calendar of the University of the Punjab adopted by the Islamia University, Bahawalpur, the petitioner had four chances to clear the examination. in question. She appeared in the Second Annual Examination, 1991 wherein she failed in Papers IV, V, VI,' VII and VII and as per the result card which is Annexure A with the petition, she was allowed to appear till the Second Annual, 1993, She ‑appeared in the Second Annunal Examination, 1992 and cleared all the papers except Paper IV and Paper VI. The result card was conveyed vide Annexure B to the petitioner wherein she was allowed to reappear in these papers till the First Annual, 1994. In terms of the result card Annexure B it is admitted that the petitioner had the following chances to reappear:‑‑ (i) First Annual, 1993; (ii) Second Annual, 1993; and (iii) First Annual, 1994.

8. The contention of the learned counsel for the respondents, however, is that the Second Annual Examination, 1992 and First Annual Examination, 1993 were held on one date on account of certain unavoidable circumstances. The decision of combining two examinations was never. conveyed to the petitioner. In fact Annexure B which is the result card of "Second Annual Examination, 1992" clearly conveyed as follows:‑‑ "Allowed to reappear in Papers IV and VI till MA./M.Sc. First Annual Examination, 1994."

9. The petitioner did appear .in the remaining two papers in the Second Annual Examination, 1993 under the impression that this was first of the three chances available to her after the Second Annual Examination, 1992 (the result of which was conveyed through Annexure B.). She cleared Paper VI but failed in Paper IV. The petitioner's father who was working in a private organization meanwhile retired and the petitioner, had to shift to Jaranwala. She did not receive the result of the Second Annual, 1993. According to her when she herself came to the Islamia University, Bahawalpur, in October, 1994 and contacted respondent No.2 she was told that she had cleared Paper VI in her third attempt but had failed in Paper IV and that thereafter she could appear in the First Annual Examination, 1994 but the said examination was in progress at that time. The respondents` contention is that the petitioner's result card was sent to the address given in the admission from through ordinary mail. There is no proof that the petitioner did receive the same. The petitioner has placed on record a copy of the certificate issued by the employer of petitioner's father which has been reproduced in para 3 above which is to the effect that even on ,that address petitioner's result card was not received.

10. The provision for intimating a candidate is contained in para. 6 of "General Rules for Guidance of Candidates" printed on the admission form. It reads as under.‑‑ "Intimation of result.‑‑Every candidate will be informed of his/her result within 10 days after the declaration of the result on the address given by him/her for despatch of result card. Any change in address, must be communicated to this office not later than 15 days of the commencement of the Examination, so that intimation regarding result may, not go astray. Telegraphic intimation regarding results is not communicated by the office. Duplicate result card be had on payment of Rs.60 only."

11. I am afraid in the background of not `too ideal' conditions which prevail in our postal service, intimation by ordinary mail is not a fool‑proof method of intimating a candidate of his result. Non‑receipt of result card in time may have disturbing consequences for a candidate who may be misdirected about the result, and of her future chances of appearance if, she is failing in certain papers. `Intimation' of result connotes that the candidate is intimated and informed about her result and if the result is to be conveyed through postal service, the only effective method for doing this would be through `Registered Post'. It is only in that eventuality that a presumption of service of a result card would arise. In absence of any specific provision prescribing mode of service section 26 of the West Pakistan General Clauses Act, 1897, would be relevant .which reads as under:‑‑ 'Meaning of service by post. Where any West Pakistan Act authorizes or requires any document to be served by post, whether the expression `serve' or either of the expressions `give' or `send' or any other expression is used, then unless a different intention appears, the service shall be deemed to be effected by properly addressing. Pre paying and posting by registered post, a letter containing the documents, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

12. Thus, as the result card was admittedly not sent through `registered post' no presumption of its having been served or conveyed to the petitioner would arise. If the Universities Authorities had intimated the result through `registered post` on the address given by the petitioner, the registered letter could have been redirected to the new address to which the petitioner had shifted.

13. The foregoing analysis would indicate that the petitioner had been misled by the Universities Authorities twice i.e. firstly while conveying result of Second Annual Examination, 1992 vide Annexure B wherein she was never informed that she had lost her chance of appearing in the First Annual Examination, 1993 as the Second Annual Examination, 1992 and the First Annual Examination, 1993 had been combined and secondly by not intimating the result of her third attempt. The respondents in their comments or during arguments have not even taken the stand that the result of her third attempt ‑i.e. Second Annual, 1993 was ever published in a newspaper. The petitioner cannot be made to suffer for an act or omission of the University. It is a settled principle of law that no one should suffer on account of some wrong act or omission of the authorities. In PLD 1961 (W.P.) Lahore 199 (Muhammad Afsar v. Mst. Munawar Jan), it was held:‑‑ "Criminal Procedure Code (V of 1898), S. 498 (3), proviso 2‑ Applicant prevented . by act of Court from enforcing order of maintenance‑‑‑Can recover arrears for more than a period of one year‑‑‑Maxim: Actus curiae neminem gravabit (an act of the Court shall prejudice no man." Similarly this view was affirmed in 1986 CLC 838 (Shaukat Ali v. Ghulam Qadir etc.).

14. There is yet another aspect of the matter. Even the compulsion of equity tilt in favour of the petitioner. She has cleared all of her papers of MA. English and only one paper remains to be cleared. In case she is denied to appear in the Second Annual Examination, 1994, she will have to appear in all the papers afresh and that too under the new syllabus. When the calls of equity are so pronounced, the Court cannot be obstructed to administer justice on the pretext of mere technicalities. This is in line with the dictum laid down by the Hon'ble Supreme Court in PLD 1975 Supreme Court 678 (Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another) wherein it was held:‑‑ "Interpretation of statutes‑‑Procedural law‑‑Legal formalities and technicalities‑‑‑Object‑Mere technicalities, unless offering unsurmountable hurdles‑‑Not to be allowed to defeat ends of justice‑ Logic of words‑‑To yield to logic of realities."

15. For what has been discussed above, this petition is allowed with no order as to costs and the respondents are directed to accept the admission form of Miss Shaghufta Maan petitioner, immediately without any late fee, if any, issue her Roll No. and permit her to reappear in Paper‑IV of MA. English Examination in the Second Annual, 1994. AA./S‑425/L Petition accepted.