2007 PLP 1687 (CLC)

SARDAR MUHAMMAD ASLAM, J.

This Intra-Court Appeal is directed against the judgment dated 23-12-1996 rendered by a learned Judge in Chamber, whereby he dismissed appellant's constitutional petition.

2. Briefly the case of the appellant is that she appeared in the F.Sc. Pre-medical Examination, 1996 and was declared successful on 1-10-1996- having secured 811 marks. She applied for re-checking of papers English "A" and Physics Paper "B" on 27-10-1996. Since the respondents did not deal with the request of re-checking expeditiously, she an applicant for admission to medical college filed constitutional petition seeking direction to re-check the aforementioned papers. The respondents submitted report and parawise comments. It was stanced that Physics Paper "B" has been re-checked and the appellant had improved by six marks, while answer book of English Paper "A" was not traceable, therefore, appellant was given option through letter, dated 1-12-1996 either to accept the award of marks as recorded in the award list or to re-appear in this paper in the next examination. Learned Judge in Chambers after hearing the parties dismissed the constitutional petition which order is under challenge in this appeal.

3. Learned counsel for the appellant contends that proviso added to rule 5.9 of the Calendar of Board of Intermediate and Secondary Education, Lahore in its meeting held on 10/12, December, 1981 is unfair, arbitrary, whimsical, in derogation of meritocracy, against fundamental rights guaranteed by Constitution of Islamic Republic of Pakistan, 1973 and cannot be equated with a rule.

4. On the other hand, learned counsel for Board argued vehemently that the appellant is not entitled to average marks by pressing into service rule 5.9 aforementioned. He placed reliance on Rana Muhammad Ajmal v. Board of Intermediate and Secondary Education, Lahore and another 1984 CLC 378, which view was affirmed in Intra-Court appeal, reported as Rana Muhammad Ajmal v. Board of Intermediate and Secondary Education, Lahore and another 1984 CLC 3316.

5. Heard. Record perused.

6. Appellant's application for re-checking of two papers Physics Paper "B" and English "A" was entertained. She secured 6 more marks than the one awarded in Physics Paper "B". Controversy thereafter, was confined to English Paper "A".

7. Section 21 of the Punjab Boards of Intermediate and Secondary Education Act, 1976 empowers the Board to frame rule, which is reproduced as under:-- "A board may make rules consistent with this Act and the regulations to provide for; (i) the inspection of institutions and the reports, returns and other information to be furnished by them; (ii) the conditions of admission o1' candidates to the examinations held ~y it and their eligibility for diploma, certificates and titles; (iii) the manner and the form in which accounts of a Board shall be maintained; and (iv) such other matters as may be required wider the regulations to be provided in the rules.

8. A Board shall consist of the fallowing members, namely:-- (i) the Chairman; (ii) the Vice-Chancellor of the University, or a University Professor nominated by him: (iii) all Directors of Education related to the area within the jurisdiction of a Board; (iv) the Director of Technical Education, Punjab, Lahore or his nominee; (v) one representative each of the Finance 'and Education Departments not below the rank of a Deputy Secretary; (vi) one Principal of a Degree College situated within the jurisdiction of the Board to be nominated by the Controlling Authority; (vii) one Principal of an Intermediate College situated within the jurisdiction of the Board to be nominated by the Controlling Authority; (viii) two Headmaster and one Headmistress of schools situated within the jurisdiction of the Board to be nominated by the Controlling Authority; and (ix) two persons nominated by the Controlling Authority from amongst scholars and retired educationists.

9. Rule 5.9 of the Calendar of the Board of Intermediate and Secondary Education, Lahore is reproduced for facility of reference:-- "5.9 If a candidate's paper is lost after having been received by the Superintendent of the Examination or by one of his Assistants and if his result in other subjects/papers entitles him to be declared successful in the examination with or without the addition of marks in the missing paper, he may be given an option either:-- (i) to appear in the missing paper and the marks obtained by him in that paper shall be duly entered in the Result sheet and his result declared accordingly; or (ii) to accept award for the missing paper calculated on the basis of the average of the marks obtained in other papers by him: Provided that if a candidate applies for re-checking of answer book/s but his answer book/s is/are found lost after evaluation, he may be given option either to accept the marks as entered in the award list or re-appear in the relevant subject. (As decided under item No.27(3) of Boards meeting held on 10/ 12th December, 1981). In case of dispute as to whether candidate's paper was duly received or not, the findings of the Controller of Examination shall be final."

10. Proviso added above requires a candidate to either appear in the paper or accept the marks awarded, if the answer book is lost after evaluation. Rule making power is with the Board under section 21 of the Act. Mere generality of decision applicable to more than one individual will not confer it a status of rule. Decision of Board, to offer a choice to the candidates, to either appear in the missing papers or accept the marks awarded is arbitrary and whimsical. Undeniably, the Board is custodian of record. In case of loss of answer book of a candidate responsibility rests on the Board. No attribution can be made to the candidate for the loss occasioned by negligence of the Board. It is fundamental right of candidate to appear in Examination, culminating into its correct evaluation and announcement of result. Utmost responsibility of Board is to keep answer books secure and safe, for re-checking. Loss of answer book by sheer negligence of Board should nit work adversely to a candidate. Overall ability can be adjudged from the marks obtained in other papers. It is disadvantageous to the candidates and negates policy of meritocracy and fairness. Board cannot punish a candidate, for the fault of its own employee.

11. Proviso added to Rule 5.9 through decision of the Board, by no stretch of imagination, can override a rule. Regulations or rules maybe made, repealed, or amended under Regulation 2(1) of the Calendar providing a manner. Clause (v) of the above regulation is relevant which mandates," the Board shall not consider a draft of any regulation or rule affecting matters that are to be considered by the Academic Committee until the Academic Committee has been given an opportunity of expressing its opinion on the draft. There is no evidence of preparation of draft or its placement before Academic Committee for its opinion. In a situation like this, clause (ii) of Rule 5.9 will be attracted, requiring award of average marks in missing paper.

12. Learned Division Bench in Rana Ajmal's case (supra) dealing with an identical question was influenced by two considerations. Firstly that the grant of average marks in a case where the answer book after evaluation by Examiner is lost will lead to opening of flood-gate of mal practices and corruption, because answer book in which candidates may have got lesser marks, may be made to disappear in their place and average marks obtained in other papers be added. Besides that, the efforts put in by the Examiner and Head Examiner in evaluating the answer books would go waste and secondly, on the basis of the result of examination, some other candidates may have been admitted to the Medical Colleges and likely to be displaced. With profound respect to the views of learned Division Bench, the 2nd consideration taken note of in the precedent case does not exist here. Appellant was admitted in the whose integrity and carefulness are unquestioned, whose Medical College on the basis of her marks obtained. She had qualified her M.B.B.S. Examination finally and in pursuit of higher education has proceeded to Canada. As far as first consideration of leading to opening of hood-gate of mat-practice and corruption, it is suffice to say, that should a candidate suffer on account of the employees of Board, involved in mat-practices and corruption. Take a case where a candidate has attempted a paper brilliantly. Awarded marks were less and on re-checking her stance was found correct. Still he should be deprived of guaranteed rights. In this case, even, on re-checking, she secured 6 more marks in Physics Paper.

13. Everybody in a democratic set-up is required to do what he is entrusted to do. Lack. of discipline control and management of affairs by Board and its employees should not work injustice to a candidate. Today's World is one of competition. Every single mark is considered, ability assessed and tested of candidate entering into research field or seeking prestigious jobs. Mere hypothetical consideration should not give way to override the rules and grant unbridled powers to the Board to deal with matter, as it may like. Ordinarily, the proviso is subordinate to the main clause. Therefore, a proviso cannot travel beyond the scope of main enactment nor it can be imported by implication in to the main enactment. In nutshell; the decision of the Board in not awarding average marks to a candidate is unsustainable in law.

14. For what has been discussed above, we accept this Intra-Court Appeal, set aside the order of learned Judge in Chamber and direct the respondents to issue revised certificate to the appellant after grant of average marks in English Paper "A". M.H./N-56/L Appeal allowed.