1999 PLP 147 (MLD)

MIAN MUHAMMAD AJMAL, J.

Khurram Shahzad and others, petitioners herein, through this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 have prayed for declaring the Orders Nos:8852/Exam and 8853/Exam: both dated 14-10-1995 issued by Controller of Examination, University of Peshawar, respondent No.3 to be without lawful authority and of no legal effect.

2. According to the averments of the petition, the petitioners after passing their D. Corn. Examination from the Board of Technical Education, Peshawar in Supplementary Examination held in November, 1994, got admissions in B.Com. Part-II Class in the colleges established by respondents 4 and 5; that after their admissions in B.Com. Pan I, respondents 4 and 5 forwarded the names of the petitioners to Peshawar University for their registration as students for the year 1994-95which was accordingly done and ' the registration cards were sent to respondents-4 and 5 for delivery to the petitioners; that examination forms of the petitioners we're submitted by respondents 4 and 5 to respondents 1 and 2 for the examination of B.Com. Part-I, which was scheduled to beheld on 19-10-1995, j but the same were returned by respondents 3 vide impugned letters dated 14-10-1995 informing them that -the petitioners were not eligible to appear in B.Com: Part I Examination 1995. Hence the present writ petition.

3. We have heard the learned counsel for the parties and perused the file. 4.The petitioners were admitted in private colleges namely Peshawar Degree College of Commerce and Business Administration Peshawar and Frontier College of 'Business Education, Peshawar who after .admission in the said colleges applied

through their respective colleges to the University of Peshawar for registration as student of the Peshawar University, which was accepted and they were duly registered by the University. The. respondents 4 and 5 submitted their examination forms to the University of Peshawar for B.Com. Part-I but they were not entertained on the basis of the rule reproduced below: "Admission to B.Com. (Pass course), shall be- open to candidates passing within Two years prior to admission in one of the following examination in at least IInd Division:-- . (a) Diploma in Commerce of the Board of Technical Education. (b) FA/F.Sc with Economics or Mathematics or Statistics from B.I.S.E. Peshawar. (c) Any other equivalent Examination recognised by the University. Respondents Nos. l to 3 in the preliminary objections of their written statement have taken an objection that the petitioners in view of para. 5(b) of Statutes, University Ordinance, Regulations and Syllabus for B.Com. (Pass) Course Examination, were not eligible to appear in the examination.

5. The rule quoted in the impugned letters is not attracted to the present case as the petitioners had applied for appearance in B.Com. Part-I Examination, which position was conceded by the learned counsel for the respondents who relied on rule 5 referred to in their written statements which for convenience sake is reproduced below:-- "

5. Qualification for appearing in the Examination. The following conditions shall be satisfied by the candidate: (a) That the candidate has passed one of the Examinations listed below:-- (i) The Intermediate Examination in Commerce of the Board of Intermediate and Secondary Education, Peshawar. (ii) The Diploma in Commerce Examination of the Board of Technical Education. (iii) The Intermediate Examination in Arts/Science with any one of the following subjects: Economics, Statistics, Mathematics, and must have second at least Second Division. (iv) Any other Examination approved by the Syndicate. (b) That the period intervening between the date of passing any of the qualifying examinations mentioned in (a) above and the date of the Part I Examination by the Bachelor of Commerce (Pass) course is not less than an Academic Year. (c). That the candidate is a person of good character. The good character certificate shall be signed by the concerned Principal." In view of the above rule, first requirement for a candidate for appearance in B Com. Part-I Examination is that he should have passed Intermediate Examintition in Commerce from Board of Intermediate and Secondary Education, Peshawar, or should have Dip" is in Commerce from Board of Technical Education or should have passed Intermediate Examination with Economics, Statistics, Mathematics in at lest second Division The second requirement is that the period intervening between the passing of the qualifying examination and B.Com. Part-I Examination should not be less than an Academic Year, and the third requirement is that he must be of good character.

6. As far conditions one and three are concerned, there is no dispute about them. The only controversy' between the parties is whether the intervening period between the qualifying examination and the intended examination is equivalent to Academic Year. The phrase Academic Year has not been defined in the calendar of the University of Peshawar, its ordinary meaning as given in Webster's New Universal Unabridged Dictionary (second edition) is as follows: academic year; the period, usually from late September to late June, in which academic institutions are in session. As per above definition the academic year commence in September and lasts upto June but unfortunately such an academic year stricto senso is never observed in our Universities. Here academic year varies from Department to Department, faculty to faculty and from college to college. The final examinations are not held in accordance with the academic year and usually the v are postponed from time to time and as such the academic year never commences in time and, thus, it is not strictly observed. Although according to Calendar University Year has been divided into three terms as follows:-- (i) Autumn term

1st September to 20th December. (ii) Winter term

6th January to 5th April. (iii) Summer term

20th April to 14th June. But as stated above, the academic year is never observed in the above terms austerely, therefore, the students cannot be penalised for the lapses of University Authorities. 'Respondent No.3 has not even quoted the correct rule in the impugned letters as the one stated is not applicable to the instant case. The objection which could legitimately be raised was whether the petitioners had requisite number of lectures to their credit and were legible to appear in tile I examination. But such an objection was not taken at the appropriate time therefore, the petitioners could not be denied the right to appear in the examination under the irrelevant and inapplicable rule. On the other hand, the petitioners have asserted that they after passing of the examination in supplementary examination held in November, 1994 got admission in the aforesaid colleges and they had the requisite number of attendance to their credit, therefore, they could not be debarred from appearing in B-Com. Part-I Examination. Since this plea has not been controverted by the respondents, therefore, they could not be deprived of their valuable rights to appear in B-Com. Part-I Examination.

7. So far as admission to supplementarians is concerned, the same cannot be denied to them for any anomolus notions. Learned counsel for the respondents could not produce any law whereby the students who pass in supplementary examination could be debarred from admission in the next higher class. According to Webster's Dictionary, "Supplement means that with which anything is made full or whole, a filing up or something added, especially to make up for a lack or deficiency". Supplementary examination, as such, is to make up the deficiency of the annual examination and, thus, it is an integral part of annual examination. When the University has a system of holding supplementary examination, then due to irregular academic year and the examination, the students who pass in supplementary examination cannot be penalised to wait for a year for their admission in the next higher class. It not only appears to be amazing but cruel as well that for the irregular examinations, the students should be made to suffer, to waste a valuable year to get admission in the next higher class. The University should schedule the annual and supplementary examination in such a manner that such an anomaly could be removed and resolved. In view of the above reasons this writ petition is allowed. The impugned Letters Nos. 8852 and 8853, dated 14-10-1995 of the respondents are declared to be without lawful authority and of no legal effect. No order as to costs. A.A/176/P Petition accepted.