2004 PLP 1080 (CLC)

3. Learned Additional Advocate-General opposed the petition and submitted that the expression "attempt" appearing in Regulation 12.12 has to be construed in terms of the construction being accorded by the University Authorities, that first attempt in this context would mean that the student remains on the roll for a continuous period of two years, that petitioner has come to this Court with unclean hands as she has not given any tenable explanation of her absence from the college, on account of which her name was struck of from the roll, that Annexure "A-1" attached with the parawise comments submitted by the respondent College indicates that petitioner had discontinued her studies of her own volition, it was not something unavoidable, that this Court sitting in Constitutional jurisdiction should not interfere with the orders passed by the Tribunals of competent jurisdiction, that the notification, dated 30-4-2001 issued by the Controller of Examinations, Government College University, Lahore which is Annexure "B-III" with the comments clearly indicates that petitioner had failed and that in the afore-referred circumstances even the equity is not in petitioner's favour. In support of the submission made learned Law Officer relied on Pakistan Medical and Dental Council v. Dr. Raza Muhammad Khan 1992 SCMR 1621 and Muhammad Yousaf v. The Collector of Sea Customs, Karachi PLD 1969 SC 153.

4. Mr. Umar Atta Bandial, Advocate (Amicus Curiae), who has appeared on Court call as Amicus Curiae submitted that the crucial issue in the instant petition is the question of interpretation of the expression "attempt" used in Regulation 12.12, that this expression has to be giver, its common dictionary meaning which connotes physical act, an effort and in this context actual participation in an examination, that whether it's a case of fresh admission or re-admission the import and effect of the afore-referred word "attempt" would remain the same, that since admittedly petitioner had left the college in M.A. (Economics Part-1) and had not appeared in any examination of the said Master Course, her admission in M.Sc. Economics in the subsequent year (2001) and her appearance in Part-I M.Sc. Economics and Part-11 M.Sc. Examination could be not considered as second attempt. He added that since the afore referred regulation does not carry any rider. it has to be accorded strict construction.

5. I have heard the learned counsel for the parties, learned Amicus Curiae and have gone through the precedent case-law.

6. The controversy raised in this petition primarily revolves around interpretation of Regulation 12.12 of College Regulation, which reads as under:-- " 12.

12. Gold Medal in each subject shall be awarded to a B.A./B.Sc./M.A./M.Sc. students who had topped the list of the successful candidates, provided he/she has passed Part-I and Part-II Final Examination in first attempt., The first position shall be determined by total score obtained in Part-I and Part-II Final Examinations."

7. Admittedly the petitioner secured highest marks and topped the list of successful candidates in the merit list of M.A./M.Sc. Part-I and Part-II notified in the year. 2003. She is being deprived of the Gold Medal solely on the ground that she did not clear Part-I and Part-II Final Examination in the first attempt and the argument being conversed before this Court is that since she had left the college in M.A. Economics Part-I, and her name was struck off from the rolls for non-appearance in the Final Part-I Examination of M.A. Economics, she would be considered as having exhausted the chance or having availed an attempt and, therefore, her appearance in M.Sc. Economics Part-I Examination in the year 2001 would be considered as a second attempt. If the intention of the Regulation maker was to consider even attempt the same should the chance which is not availed as the first have been specifically provided, in the said Regulation. In the Prospectus of M.B.B.S. course the intention of the law-maker is explicit. Regulation No.3(a) of the said Prospectus reflects the intent that a "chance" would be deemed to have been availed even if the candidate has not actually appeared. It reads as under:-- "3(a) Any student who fails to clear the First Professional M.B.B.S. Examination in four chances offered by the University availed or un-availed (emphasis supplied) shall cease to be eligible for; further Medical/Dental education in Pakistan. This will be effective from the First Year admission of 1986-87."

8. No such intention is manifest in the regulations under consideration. The expression "attempt" has not been defined in the Regulations. There is nothing in Regulation 12.12 to accord the construction of the kind which is being given by the respondent college. The word "attempt" in the ordinary dictionary means as under:-- "to try, endeavour (to do, or with n. of action): to try, to attempt" In Yusuf Abdullah Patel v. R.N. Slankla (1970) 72 Bombay. L.R.575 at p.578, attempt has been defined as, "an attempt is an intentional preparatory action which fails in object-which so fails through circumstances independent of the person who seeks its accomplishment."

9. It is no body's ease that petitioner ever signed the examination form in M.A. Part-1. Even otherwise it is not disputed that by the time petitioner joined M.Sc. Part-I in the year 2001 not only the nomenclature of the degree had been changed but even the course had undergone al substantial change.

10. The argument of learned Additional Advocate-General that in not disclosing as to why she discontinued her studies she has came to the Court with: unclean hands is a rather unkind cut. Perhaps, for reasons of propriety or on the advice of her counsel she did not in the body of this petition narrate the episode ' which interrupted her studies. But the respondent College has placed on record (Annexure "A-II" with comments) the letter written by the petitioner explaining the circumstances of the break in education and how she sought readmission after one year. The reasons are rather personal. But since the learned Law Officer attempted to paint her grey by referring to her as coming, with "unclean hands" the Court deems it proper to reproduce the afore referred letter (dated 22-10-2003):-- "The Principal, Government College, Lahore. Dear Sir, It is submitted that I was a regular student of M.A. Part-1 year A 2000. My parents found a proper match and I was engaged in January, 2001. Nikah ceremony was performed and I was to leave Pakistan (for U.S.A.) in six months or so. I could not attend the college due to above said development. Unfortunately the Nikah formality took longer time than desired, simultaneously some domestic problem erupted and the marriage expired without consummation. The relation was broken and the immigration to America did not become a reality. Now under the changed circumstances our family has decided that I would complete my studies. I therefore, request as it is the matter of my future, my case may very kindly be considered for my admission in M.A. Part-I. I shall be very grateful to you. Your obediently, Famita-Tuz-Zahra, Dated 22nd October, 2001. Roll No.87 (2000-2002) It goes to her credit that despite the unhappy episode mentioned in the letter she was able not only to resume her studies but passed M. Sc. Part-I and Part-II in first division and topped the list on merit in the final combined result. Even equity tilts ml her favour. It is not disputed that there is a difference of 25 marks between her and respondent No.4 whom the respondent wanted to award) the Gold Medal.

11. For what has been discussed above, this petition is allowed, the impugned notification is set aside and the respondent University College, Lahore is directed to issue fresh notification in terms of the merit list notified by the said University of M.Sc. Examination, 2003. There shall be no order as to costs. M.A.W./F-18/L Petition allowed.