2000 PLP 462 (MLD)

(ii) that the petitioner is doing the chartered accountants course since 1984 and the syllabi, in the meanwhile, has undergone a change and it would be harsh if the petitioner is compelled to appear in full examination of P.E.1.

2. Learned counsel for the respondents, on the other hand, submitted that in terms of the Chartered Accountants Bye‑Laws, 1983 framed under section 27(1) of the Chartered Accountant Ordinance, 1961, the Council of the Institute of Chartered Accountants of Pakistan with the approval of the Federal Government had issued Bye‑Laws which are mandatory. He referred to second proviso to Bye‑Law 118 to contend that the petitioner could clear the paper in which he had failed in two permissible chances and he having availed those chances could not claim any other chance to clear the examination. Further submitted that the only course open to the petitioner is to appear in all the papers. Contended that this provision to limit the number of chances was introduced to improve the quality of course and to discourage non‑serious attitude of the students. He referred to the judgment of Hon'ble Supreme Court reported in Institute of Chartered Accountants of Pakistan, Karachi and others v. Federation of Pakistan and others (1998 SCMR 2679) to contend that there being no jurisdictional defect in the order passed and the letter issued by the respondent authorities, therefore, no case for interference under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is trade out.

3. Heard.

4. Petitioner has not challenged the vires of Bye‑Laws framed by the Institute of Chartered Accountants of Pakistan. His only grievance is that Bye‑Law No. 118 is being misconstrued by the respondent. It is, therefore, necessary to refer to the said Bye‑Law No. 118 which reads as under:‑‑ "Failure of candidates at examination‑‑A candidate who has failed to pass any examination, or group or part of examination, may offer himself for that examination or group or part of examination, as the case may be, on any subsequent occasion in such manner and within such period as the Council may determine: . Provided that a candidate who is successful in all papers except in one paper or a section of paper of a group or part thereof, he may, subject to approval of the Council, be allowed to take that paper or, as the case may be, section of a paper again instead of re‑appearing in all papers; Provided further that such candidate shall be allowed to clear the said paper or, as the case may be, section in two attempts by appearing in two immediate succeeding examinations."

5. According to the learned counsel for the petitioner second proviso to Bye‑Law 118 does not envisage any penalty, therefore, petitioner cannot be refused permission to appear in the paper concerned. A bear reading of second proviso to Bye‑Law 118 would indicate that the Council of Chartered Accountants wanted to limit the chances of re‑appearance in one paper to two only and the interpretation attempted to be canvassed by the petitioner's learned counsel would defeat the very purpose of the said Bye‑Law. In Institute of Chartered Accountants of Pakistan, Karachi and others v. Federation of Pakistan and others (1998 SCMR 2679) reference to which has been made by respondents' learned counsel, the High Court of Sindh while declaring the relevant S.R.O. intra vires (issued by the Council of Chartered Accountants for Pakistan in terms of which the number of chances for a student to pass the intermediate and final examinations of chartered accountants were reduced‑ to 8) had referred the matter to the Council and observed that the said act was oppressive and against the public interest. The Court further directed the Council to refix the said number of chances not being less than twelve. The Hon'ble Supreme Court set aside the afore- referred judgment and, at page 2694, observed as under:‑‑ "It is, therefore, .quite clear that the S.R.O. was issued by the Council after the matter was considered at different levels for about five years. We are also of the view that reasonable justification existed before the Council for fixing chances for the students to clear each of the two examinations (Intermediate and Final of the CA.), Therefore, the decision of the Council fixing 8 chances for students to clear the Intermediate Examination and another 8 chances to pass the Final Examination of C.A. could not be interfered with by the High Court on merits, in exercise of its jurisdiction under Article 199 of the Constitution. " The said S.R.O. i.e. S.R.O. No.147(KE)/90, dated 29‑7‑1990 was, however, set aside by the Hon'ble Supreme Court as the same was issued without complying with the conditions stipulated in section 27(2) of the Chartered Accountants Ordinance, 1961, since it was issued without approval of the Government which is mandatory. However, so far as the vires of the Chartered Accountants Bye‑Laws, 1983 are concerned these were issued with the prior approval of the Federal Government and that precisely is the reason that its vires have not been challenged by the learned counsel. In the same judgment the Hon'ble Supreme Court had commented not only on the power of the council to issue the Bye‑Laws but also on the validity and rationale of second proviso to Bye‑Law 118 under which the impugned letter has been issued by the respondent Institute. The august Supreme Court. observed, at page 2696, as under:‑‑ "However, the chances to clear such examination are restricted to only two attempts at the two immediately succeeding examinations under the second proviso to Bye‑Law

118. Similarly, under Bye -Law 120 a student seeking admission to the Entrance Examination of the Institute is allowed only two attempts to pass the Entrance Examination. It is, therefore, quite clear that wherever the Council was of the view that it was necessary to restrict the number of attempts/chances by a student to clear certain examination under the Ordinance, it so provided through the. Bye‑Laws. The restriction of chances/attempts by a student to pass the Intermediate and Final Examination of C.A being directly connected with the maintenance of standard of training and education in the field of chartered accountancy it could only be provided by the Council through a bye law framed in accordance with the provisions of section 27 of the Ordinance. "

6. For what has been discussed above there is no merit in this petition which is hereby dismissed.

7. So far as the grievance of the petitioner qua the hardship aspect of the matter, if any, is concerned he can, as agreed by the learned counsel for the respondent Institute, prefer a representation to the Council, who may examine the desirability of amending the bye‑laws to accommodate a hardship case expeditiously preferably within three months. H.B.T./A‑190/L