1994 PLP 1073 (CLC)

6. Section 21 of the Punjab Board of Intermediate and Secondary Education Examination Act, 1976 (hereinafter referred to as "the Act") empowers the Board to make rules consistent with its Act and Regulations to provide‑‑‑ (i) .. (ii) .................. (iii) .. (iv) Such other matter as may be required under the Regulation to be provided in the Rules. Chapter IX of the Regulations of the Board provides for scheme of studies for the Intermediate Examination and the Rule 5 thereof provides as under:‑‑ "The Syllabuses and Courses of Reading prescribed for examinations can be changed from time to time by the Board; such changes being duly notified ordinarily two years before the date of the examination from which they are to take effect." Rule 2 of Chapter 2 of the Rules for Intermediate Examinations provides the condition of eligibility for a regular candidate which provides that in order to be eligible to appear in the Intermediate Examination, a regular candidate must have passed not less than two academic years previously the Secondary School Examination. Rule 2.3 provides for the payment of registration fee at the time of admission in the institution in the Intermediate classes. Rule 6.1 which pertains to the number of attempts/opportunities to qualify the examination provides as under:‑‑ "To qualify for the grant of the Intermediate Certificate, a candidate shall be provided with a maximum of three consecutive examination opportunities in case he/she qualifies at least in the subjects carrying 600 marks in the first attempt." Rule 12 on which the reliance is placed is reproduced as under:‑‑ "A candidate who fails to qualify for the grant of the Intermediate Certificate for want of not more than 1% of the total number of marks allotted to the relevant group, shall be given the benefit of requisite number of marks in the subjects/papers in which he has failed so as to enable him just to qualify for the grant of the certificate; subject to Rule 9(ii); provided that these marks shall not be physically added to the marks obtained by the candidate in the said subjects/papers, or the aggregate, but the marks actually obtained by him in these subjects/papers will be‑included in the aggregate, and a note to this effect will be given in the certificate." It is pertinent to mention here that a Hand Book of Curricula and Syllabi for the Intermediate Examination has been issued for the guidance of the students by the Board of Intermediate and Secondary Education, Lahore, wherein admission rules, scheme of studies and details of subjects have been provided for the guidance of the students. Whatever rules have been provided in the Board Calendar for the Intermediate Examination, have also been reproduced in extenso in this Hand Book. Rule 12 as well as Rule 6.1 on which the learned counsel for the petitioners have placed reliance have also been provided in this Hand Book. Chapter III of the Regulation 2(2) of the Calendar of the Board of Intermediate and Secondary Education, Lahore, provides as under:‑‑ "Regulations or rules shall take effect from the date of their approval unless any other date is specified therein as the date from which they are to come into force: Provided that a regulation or a rule shall take retrospective effect only if it is not to the detriment of the interest of an employee, or a student, or as candidate for an examination of the Board, or a recognized institution." The petitioners in all these cases took their Intermediate Part II Examination in I s t Annual, 1992 and at that time by virtue of Rule 6.1 they acquired a right to avail three opportunities in accordance with this Rule to clear their subjects. This has been so even represented by the Board when the students were issued result cards of the 2nd Annual Examination, 1992 wherein it was specifically mentioned as under:- So on the basis of Rule 6.1 and this instruction conveyed by the Board through the result card all the petitioners availed their last opportunity by taking First Annual of 1993. The factum that the petitioners were having last opportunity is also evident from the result card of the Annual 1993 sent by the Board to the petitioners wherein it is provided as under:‑‑ This shows that Rule 12 on which the reliance is placed was very well in existence when the petitioners took their Intermediate Part II Examination in Ist Annual, 1992. It was done away with after the submission of their forms for the Intermediate 2nd Annual Examination, 1992 as the last date for the submission of forms for Intermediate for 2nd Annual, 1992 was 20th of September, 1992 while the rule was deleted on the 26th of September, 1992. This shows that a valuable right accrued to them cannot be taken away in this arbitrary manner. In this regard I am fortified by the observations of the Hon'ble Supreme Court in case titled Miss Sultana Khokhar and 2 others v. The University of the Punjab, through its Registrar reported in PLD 1962 SC' ,35 while upholding the applicability of the newly‑amended statutes of the University of the Punjab by which (i) the pass aggregate was raised from 40% to 45% and (ii) the examinees were required to qualify by obtaining at least 33% marks in each paper of both the written and the practical parts of the examination it was observed as under:‑‑ "No such excuse exists in the case of the present petitioners for, the amended Statute came into operation even before the present petitioners embarked upon their final year of study. Hence it cannot be said that the University has either applied the amended Statute in a discriminatory fashion or that it has applied it retrospectively. The present petitioners had ample notice before they commenced their course of studies for the final year or the B.Sc. Honours School that they would be examined in the examinations in accordance with the amended Statute." (Underlined is mine). However, in the cases in hand the petitioners before the deletion of Rule 12 which was on 26‑9‑1992, had not only completed their Class XII of Intermediate studies but had also taken the examination of Ist Annual, 1992 and earned three opportunities/attempts to clear their subjects in accordance with Rule 6.1. There is another aspect of this case which needs consideration. The candidates/examinees who like petitioners availed their second attempt/opportunity by taking 2nd Annual Examination) of 1992 have been extended the benefit of Rule 12 while the same facility has been denied to the petitioners who have availed their last attempt by taking 1993 Annual Examination which action on the part of the respondents amounts to discrimination.

7. It is pertinent to mention here that in Rule 12 the expression "shall" has been used which prima facie cast a duty to grant the concessional marks. It has been held in Muhammad Mushtaq and another v. Bashir Ahmad Chaudhry and another (PLD 1991 Lahore 400) as under:‑‑ "Prima facie the expression "shall" when it appears in a Statute is used as a term of art to impose a duty to do what is prescribed, not a discretion to do it or not according to whether it is reasonably practicable to do it or to do something like it instead." The refusal to grant concession to the petitioners would also be adversely effecting their career as earlier stated in the preceding paragraph they have already exhausted their opportunities and now they have to take the composite examination in all the subjects as reflected from their result card of Annual 1993, the Urdu version of which is already reproduced in the preceding paragraph. However, with the grant of concession the petitioners would be in a position to take their BA./B.Sc. Examinations in which they got provisional admissions earlier. The denial of this concession would also be in conflict with Regulation 2.2 of Chapter III of Board of Intermediate being detrimental to the petitioners as this would amount to depriving them of a valuable right accrued to them earlier. Accordingly, in view of what has been stated above all these writ petitions are accepted and respondent‑Board of Intermediate and Secondary Education is directed to grant concessional marks as envisaged under Rule 12 of the Intermediate Examination Rules to the petitioners after full verification. There shall be no order as to costs. A.A./S‑412/L Petition accepted