1998 PLP 836 (SCMR)

NASIR ASLAM ZAHID, J.

Respondent Asim Abbas appeared in B.A. Annual Examination, 1992 (Roll No.67843). His result was declared alongwith other candidates. In English Paper (B), his result was shown as "later on". Apparently respondent's answer book in the said paper was misplaced or lost and the controversy between the University and respondent/student has been whether, under the relevant Regulation, respondent who passed in all other subjects was required to appear in English Paper (B) again or; without taking such further examination, he is entitled to average marks obtained by him in other papers, in which he had appeared and passed. The University had offered the respondent to appear in the said paper again but the respondent's stand has been that he was entitled to be given average marks on the basis of the marks obtained by him in other papers. The stand of the respondent was not accepted by the University, which led the respondent to tile a writ petition in the Lahore High Court, which has been allowed by the impugned judgment dated 21-12-1993. the University filed a petition for leave to appeal and, by, order dated 12-3-1994, this Court granted leave to the University. by the following order:-- "The respondent appeared in the B.A.!B.Sc. First Annual Examination of 1992. His script in English Paper 'B' was not available with the consequence that his result was withheld. The University Authorities asked him to take the examination in the said paper again. He declined to do so and he claimed that he was entitled to average marks in the missing paper in accordance with Regulation No.6 of the University Calendar. When the University refused to accept his claim he filed a Constitutional petition in the High Court. A learned Single Judge accepted his petition and granted the relief sought by him. The University seeks leave to appeal from the judgment of the High Court.

2. The relevant Regulation reads as follows:-- 'If a candidate's paper is lost after having been received by the Superintendent of the Examination Centre or by one of his assistants, and if he passes in all other subjects of the examination, he may be required to appear in that one paper which is lost on a date fixed by the Controller of Examinations, and if he obtains pass marks he shall be deemed to have passed the examination. In case of dispute as to whether a candidate's paper was duly received or not, the finding of the Controller. of Examinations, subject to the approval of the Vice Chancellor, shall be final: Provided that if an answer book/s received by an Examiner is/are lost before or after evaluation, average of the marks obtained by the candidate in other papers in which he has appeared shall be awarded to him in the said paper. The candidate shall, however, have the option either to avail the average of the marks or to re-appear in the paper: Provided further that the benefit of grant of average marks will not be given to candidates in cases of re-checking of answer books after declaration of their results, if their answer book/s is/are lost at the time of re-checking. They will, however, have the option to re-appear in the paper/s in the next examination if otherwise eligible. The candidate will also be allowed to claim refund of fee for re-checking.' It is averred on behalf of the University that the script of the respondent's paper was not received from the examination hall and in support of this assertion reliance has been placed upon the list of the script, prepared by the Secrecy Branch of the University. It is contended that in view of this position the proviso upon which the High Court has relied was not applicable. 3. the contention raised in support of this petition needs examination. Leave to appeal is granted. The interim order made on 28-2-1994 by a learned Single Judge of this Court to remain, in force during the pendency of the appeal. " We have heard the arguments of Mian Tariq Mehmood, learned Advocate Supreme Court, who appeared for the University, and Syed Waheed-ur-Rehman Gilani, learned Advocate Supreme Court for the respondent. The only question involved in this appeal is the interpretation of Regulation No.6, which has been reproduced in the above leave granting order.

2. From the memo. of writ petition filed by the respondent before the High Court (pages 15-20 of the paper book) it appears that the case of the respondent himself was that his answer book in question had been received by the Store Section from the Superintendent from where it was misplaced. In this connection reference may be made to ground (i) which is as follows:-- "That the first and foremost contention of the petitioner is that it has been proved through enquiry that the petitioner did appear in the examination and submitted the Answer Book. The fictitious number allotted to the Answer Book of the petitioner clearly and conclusively proves that the petitioner's answer book was received by the Store Section from which it has been misplaced. The careless and criminal negligence of the staff of the respondent cannot be lightly taken because this negligence has wasted most precious year of the life of the petitioner. " From the memo. of writ petition of respondent, it also appears that at the insistence of the respondent, an enquiry was conducted with which the respondent was associated and, in the said enquiry, it was found that the answer book had been misplaced. Neither it was the case of the respondent that his answer book in question had reached the Examiner nor the enquiry established that this was so. From this it follows that the answer book had been misplaced either in the Office of the Superintendent of Examination or during despatch from Superintendent Examination to Store Section or it was misplaced in the Store Section. In any vent, it was never the case of the respondent that his answer book in question had reached the Examiner.

3. With the above factual background, the relevant. Regulation No.6 may now be considered. The main part of the Regulation (the first part) is to the effect that if a candidate's answer book is lost after having been received by the Superintendent of the Examination Centre or by any of his assistants, and if he passes in all other subjects, he may be required to appear in that one paper which is lost. However, the first proviso is to the effect that if an answer book received by an Examiner is lost before or after evaluation, average of the marks obtained by the candidate in other papers in which he has appeared shall be awarded to him in the said paper though the candidate shall have the option either to avail the average of the marks or to re-appear in the paper. ,

4. According to learned counsel for the University, the case of the respondent was covered by the main Regulation, whereas contention of learned counsel for the respondent/candidate was that it was covered by the first proviso and the respondent was entitled to average marks in the English Paper (B) and he could not be compelled to appear in the said paper again. We find no merit in the contention of learned counsel for the respondent. It is apparent from the reading of the relevant Regulation No.6 that the first proviso comes into play only after the answer book is received by an Examiner, though the loss of the answer book be before or after evaluation of the answer book and, while giving resume of the facts it has been observed earlier that the case of' the respondent was that the answer book was lost in the Store Section. Respondent had been associated in the enquiry conducted by the University and the respondent's own case in his writ petition was that the answer book had been lost or misplaced in the Store Section: It never reached the Examiner. It has never been the case of E `the respondent that the answer book had reached the Examiner and then it was lost or misplaced. In the circumstances, first proviso in Regulation No.6 is not applicable and the main rule contained in the said Regulation applies which requires that respondent should appear in the said paper again and he could not be given average marks on the basis of marks obtained in other papers without reappearing in English (B) Paper again. ' We also find from the impugned judgment of the High Court that there is no finding by the High Court that the answer book had reached the Examiner and then it was lost or misplaced. The impugned judgment of the High Court is, therefore, not sustainable. 5. .As a result, this appeal is allowed, impugned judgment dated 21-12-1993 of the Lahore High Court passed in Writ Petition No. 15201 of 1993 is set aside and the University is directed to make arrangements for holding of the examination for English Paper (B) for respondent Asim Abbas within two months from today and intimation may be sent in writing by Mian Tariq Mehmood, learned Advocate Supreme Court to the respondent directly with a copy to Syed Waheed-ur-Rehman Gilani, learned Advocate Supreme Court for the respondent, within 15 days from today intimating the date, time and place, the examination would take place. Care will be taken that sufficient notice is given to the respondent so that he can make arrangements for appearing in the paper. Before parting wit Hits judgment, we consider it appropriate to observe that, in such cases, required action should be taken by the University Authorities promptly so that the prejudice, inconvenience and agony to/of the concerned student is not, unnecessarily, prolonged. It has been noticed in the case of Asim Abbas that he had to persuade the University Authorities to hold an enquiry and do the needful at the earliest but, despite that, it took several months before a final decision was taken by the University. In a case like this, where the student is not at a fault and the responsibility for loss and misplacement of the answer book is on the staff of the University, it is expected that the University Authorities would take immediate action and show their concern for the harassment and agony caused to the affected student and his family. A.A./U-5/S Appeal accepted.