' Petitioner is a trainee student of Chartered Accountancy in terms of section 2(g) of the Chartered Accountants Ordinance, 1961 (Ordinance X of 1961). He entered into the training contract on 28-2- 1994, appeared in the Intermediate Chartered Accountancy Examination in Group-I in April, 1995 and failed; that he appeared for the second time in October, 1995 with the same result. However, in May, 1996 he cleared Group-I of the Inter Chartered Accountancy Examination. Having succeeded in Group-I, he appeared in Group-II Examination in November, 1996 but could not qualify. In the meanwhile, the Chartered Accountancy course changed and instead of Groups-I and II, the new course prescribed the examination nomenclature as FE-I and FE-II Examinations. In terms of the changed syllabus, the petitioner now had to appear in FE-II Examination (as he had cleared Group- I under the old course) with the rider that he had to appear in two additional subjects besides five papers under the old course. Petitioner appeared in Part-II Examination with two additional subjects in May, 1997, cleared all the papers except one i.e. "Information Technology". He appeared again in November, 1997 in the said subject but without any success and his attempt in March, 1998 met the same fate. Petitioner's application for another chance to appear in the afore-referred failed subject was not acceded to by the respondent Institution of Chartered Accountants of Pakistan as he had already exhausted all the chances. This was vide letter dated 14th July, 1998 which is impugned in this petition.
2. By an order of this Court dated 5-8-1998 while calling for comments from the respondent Institute, a learned Judge of this Court Mr. Justice K. N. Bhandari (as his Lordship then was) provisionally allowed the petitioner to appear in the failed subject of "Information Technology" in the third attempt but the respondent Institute has not announced the result on account of the pendency of this petition.
3. In support of this petition, learned counsel for the petitioner (Mr. A. K. Dogar, Advocate) has made following submissions:--
(i) That the petitioner was registered as a trainee student on 28-2-1994 whereas the new scheme, which prescribed the two attempts, came into effect from January, 1996. The same cannot have retrospective application and the petitioner cannot be refused third chance to appear in the failed subject
(ii) That the new scheme gives an option to the trainees under the old scheme to opt for the new scheme or to be examined under para.9.2.4 of the Syllabus and Scheme of Education and Training for Foundation and Professional Examinations issued by the Institution of Chartered Accountants of Pakistan. Since the petitioner did not opt for the new scheme, para.9.2.4 referred to above shall be applicable;
(iii) That in terms of para.9.2.4, "CA Inter students who did not opt for the new scheme before May and November, 1996 examinations and continued to take examination under the old scheme till November, 1996 shall take their remaining attempts under the New Syllabus from April/May, 1997 examinations". Petitioner according to the learned counsel, availed his fifth attempt under the old course in May, 1997 and since eight attempts were permissible he still had three attempts more within which he could clear the Intermediate Chartered Accountancy Examination and his two attempts to clear the paper of "Information Technology" availed in November, 1997 and March, 1998 would show that by the latter date he had in all availed seven chances and eighth chance still remained to be availed. The refusal of the Institution of Chartered Accountants of Pakistan not to grant him the eighth chance is violative of the afore-referred paragraph and, therefore, not su stainable;
(iv) That the petitioner availed the eighth chance with the permission of this Court and the refusal of the respondent Institute to announce the result is not tenable besides being contemptuous. He referred to a judgment of the august Supreme Court in Riazul Haq v. Selection Committee Constituted for admission to Bolan Medical College through Secretary Principal Bolan Medical Collage, Quetta and 6 others 1997 SCM R 1845 to contend that in the said case, the august Supreme Court of Pakistan confirmed the interim relief while accepting the appeal;
(v) That the petitioner, admittedly, has passed all the papers of old course/scheme and the only paper left in which the petitioner failed was a new paper i.e. "Information Technology" which being a new and difficult paper could not be cleared in the attempts availed and keeping in view the afore-referred circumstances petitioner was entitled to another attempt which was rightly provisionally granted by this Court vide interim order dated 5-8-1998. Petitioner, during the last five years since the passage of the interim order of this Court, has developed a legitimate expectancy for the relief sought which is warranted even in terms of the canons of equity.
4. Learned counsel for the respondent Institute of Chartered Accountants of Pakistan (Mr. Anwar Kamal, Advocate), while opposing the petition, contended as under;--
(i) That the new syllabus and scheme was introduced with effect from January, 1995 when the petitioner appeared in April, 1995. In Group-I Examination, he knew it fully well about introduction of the new scheme, therefore, he cannot plead that he was taken by surprise and there was no question of retrospective application of the scheme;
(ii) That until the pronouncement of the judgment reported in The Institution of Chartered Accountants of Pakistan Karachi and others v. Federation of Pakistan and others 1998 SCM R 2679, trainee could avail eight chances to clear the Intermediate Chartered Accountancy Examination but after the said judgment there is no change in the number of chances a trainee can avail;
(iii) That under bye-law 118 Chartered Accountants Bye-Laws, 1983 if a trainee fails in two attempts he will be allowed to appear in two immediately succeeding examinations and if he fails he has to appear in all the subjects once again;
(iv) That the students/trainees who had passed Group-I of the old Intermediate Chartered Accountancy Examination up to April, 1996 were offered benefits for opting the new syllabus and were required to take only four attempts and were given two additional attempts to pass the remaining papers. The students who did not opt the new scheme and were being examined under the old course up to April/May, 1996 were required to pass the specified subjects instead of old Group-II subjects as the last examination of old Intermediate Syllabus was held in October, 1996 after which the new syllabus was applicable. The students were thus liable to take the examination as per the rules and were required to appear in two additional papers besides five papers of the old course. Since the petitioner has failed in one, out of the two additional papers, and has exhausted two attempts to clear the said paper, he cannot be given a third chance as he is required to appear in all the seven papers in his eighth and last attempt.
5. I have heard learned counsel for the parties and have given anxious consideration to the issues raised and submissions made at the bar.
6. Admittedly, petitioner was a student of Chartered Accountancy under the old scheme and by May, 1996 he had cleared Group-I under the said scheme. The case, therefore, falls within the ambit of para.9 of the Syllabus and Scheme of Education 'and Training for Foundation and Professional Examinations, which came into effect from Ist January, 1995. The afore-referred para. Is relatable to the trainees under the old course and is titled as "transitional profession". Para.9.2.4 would be of relevance in the instant case which reads as under;-- "9.2.4. CA Inter students who did not opt for the New Scheme before May and November, 1996 examinations and continued to take examinations under the Old Scheme till November, 1996, shall take their remaining attempts under the New Syllabus from April/May examinations."
' In terms of the afore-referred para., petitioner had to appear, besides the five papers of the old course (Group-II Examination) two additional subjects with the nomenclature of the examination "
Group-I and Group-II Examinations" were substituted "Chartered Accountancy FE-I & FE-II".
Petitioner appeared in FE-II Examination in seven subjects (five of the old course and two additional subjects introduced under the new scheme) but failed in one subject i.e. "Information Technology".
He could not clear this subject in two attempts, which he availed in November, 1997 and March, 1998. The respondent Institute of Chartered Accountants of Pakistan, vide the impugned letter, has refused him third chance to appear in the afore-referred paper of "Information Technology" and instead asked him to appear in all the subjects. This letter has been issued in terms of bye-law 118 of Chartered Accountants Bye-Laws, 1983 (framed pursuant to subsection (1) of section 27 of Chartered Accountants Ordinance, 1961 (Ordinance X of 1961) by the Council of the Institute of Chartered Accountants of Pakistan, with the approval of the Federal Government) which stipulates as under:-- "118. Failure of candidate at examination.---A candidate who has failed to pass the Intermediate or Final Examination or a group of Intermediate and Final Examination may offer himself again for that examination or group of examinations as the case may be, on any subsequent occasion or occasions in such manner as may be prescribed by the Council: ' Provided that a candidate who is successful in all papers except in one paper of Intermediate or Final Examination or a group or groups thereof in the examination held in May, 1981, or thereafter may be referred and allowed to take that paper again instead of re-appearing in all the papers: ' Provided further that a candidate who is eligible under the foregoing provision for being referred shall be permitted two attempts which shall be at the two immediately succeeding examination."
7. A combined reading of first and second proviso to the afore-referred bye-law would Show that if a candidate is successful in all, except one paper, he may be allowed to take the said paper instead of reappearing in all the papers but the said facility carries a rider in second proviso wherein it has been mandated that he shall be permitted two attempts in "immediately succeeding examinations". These two attempts petitioner has already availed. It is not open to him to contend that since the new scheme was introduced in January, 1995 and he was registered under the old scheme, therefore, he be allowed another chance, firstly, because the afore-referred bye-law was in vogue even when he was registered as student in the year 1994 and, secondly, the two additional subjects were introduced in terms of the new scheme w.e.f. 1st January, 1995 and the petitioner, of his own volition, opted for the old scheme. He was amenable to para.9.2.4. Of Syllabus and Scheme of Education and Training for Foundation and Professional Examinations by the Institute of Chartered Accountants of Pakistan sub-para (b) of which prescribed that the trainees under the old course will have to appear in two additional subjects. Petitioner has not been taken by surprise and there is no question of retrospective application. The "retrospective' ground was repelled by the august Supreme Court in Akbar Ali Javed v. Principal, Quaid-i-Azam Medical College 1994 SCM R 532, wherein it was held as under:-- "The above rule being the part of the prospectus for the academic year 1986-87, under which the appellant was admitted to M.B.B.S. Classes, his right to continue his studies was governed by that rule. The appellant having availed four clear chances to clear his First Professional M.B.B.S. Examination, and failed, could not claim any right to continue his studies in view of the abovementioned rule. The learned counsel for the appellant is unable to show that the above- quoted rule contravened or came in conflict with any provision of law made applicable to the respondent's Institute. The learned counsel for the appellant is also unable to demonstrate that the above-quoted rule contravened any of the fundamental rights guaranteed under the Constitution........ "
' In The Institution of Chartered Accountants of Pakistan Karachi and others v. Federation of Pakistan and others 1998 SCM R 2679, a challenge was thrown to the application of an S.R.O. Issued by the respondent Council and while dismissing the argument of retrospectivity, the august Court, at page 2691, held as under:-- ' The learned Judges of the High Court, however, found that provisions of the S.R.O. Were not applicable to students who were registered with the Institute prior to 28-7-1990, the date on which the S.R.O. Was issued. This conclusion of the learned Judges of the High Court does appear to be correct. There was no question of retrospective operation of the S.R.O. The S.R.O. Having been enforced on 29-7-1990, applied to all examinations, held after its enforcement."
' The refusal of the respondent Institute to allow the petitioner third chance to appear in the failed paper of "Information Technology", therefore, was well within the ambit of law and no exception could be taken to it. However, there is another aspect of the matter. Petitioner was allowed to appear for the third time in the paper of "Information Technology" by an almost consensual order of this Court dated 5-8-1998 passed by Mr. Justice K. N. Bhandari (as his Lordship then was). I say consensual because that order was never challenged by the respondent Institute. No application was made even before this Court to have this order recalled, no application was made to have the impugned petition fixed for an early date and more than four years have gone by since the passage of the order. If the afore-referred interim order had not been passed or the petition had been dismissed, petitioner would have appeared in all the seven subjects which right he admittedly had, as held by the august Supreme Court in The Institute of Chartered Accountants of Pakistan Karachi and others v. Federation of Pakistan and others 1998 SCM R 2679 as also conceded by the learned counsel for the respondent Institute. In fact he could avail two chances to clear the examination every year. 4-1/2 years is quite a time in career of a student. He was allowed to believe by an act of this Court and that of the respondent Institute that he had legitimate expectancy to avail third attempt. It would be rather harsh to deprive him of the result of the said attempt. In similar circumstances, this Court in an unreported case, while dismissing petition on merit, allowed relief to the petitioner in the said case in terms of the interim order in Miss Farrukh Sohana Zaib v.
University of the Punjab (Writ Petition No,4553 of 1997) and held as under:-- "To me it is clear that the above principle is attracted in this case also. The petitioner having been allowed to avail of another chance under the interim order of this Court and having admittedly passed the only remaining paper, it would not be in the interest of justice to now throw her out of studies. Particularly, when it is admitted that the petitioner has also completed her Second Year Classes without any complaint as to her studies."
' While deciding about twelve writ petitions in Miss Karima v. University of the Punjab through Vice Chancellor, Lahore and others 2001 M LD 1252, and while holding that the petitioners did not have a right to avail extra chance allowed the interim relief as those students had been allowed to appear in the extraordinary chance by an interim order of this Court. While referring to the dictum laid down by the apex Court of the country, at'page 1256, the Court held as under:-- ' We are not prepared to allow the petitioners to be thrown out of the study even though they have passed the examination in violation of the Regulation referred above. It is well-settled that an act of the Court will not prejudice a litigant. The Honourable Supreme Court of Pakistan in a case reported as Riazul Haq v. Selection Committee Constituted for Admission to Bolan Medical College through Secretary Principal Bolan Medical College, Quetta and 6 others 1997 SCM R 1845 directed the petitioner by an interim order to be admitted in M.B.B.S. Course and by the time of final hearing of the case, the petitioner had reached the final year M.B.B.S. The Court, therefore, held that it could not allow the petitioner to be deprived of his brilliant medical career. The Court followed its earlier precedent reported in the case of Hamza Khan v. Province of Balochistan 1995 SCM R 711.
Respectfully following the above dictum laid down by the Honourable Supreme Court, the petitioners in the above said writ petitions are allowed to continue their studies. In these circumstances we would dispose of all said writ petitions holding that although the regulation in question is valid but the petitioner having cleared the First Professional M.B.B.S. Examination under interim order of this Court shall continue their studies and their such clearance shall be deemed to be proper and legal and will not adversely affect their continuous educational career."
8. For what has been discussed above, while holding that bye-law 118 framed pursuant to subsection (1) of section 27 of Chartered Accountants Ordinance, 1961 (Ordinance X of 1961) by the Council of the Institute of Chartered Accountants of Pakistan, was fully applicable but since the petitioner has availed the third chance by an order of this Court dated 5-8-1998 passed by Mr. Justice K. N. Bhandari (as his Lordship then was) and as the respondent Institute filed no application before this Court to have this order recalled or challenge it before a higher forum for the last more than four years and if the chance so availed is declared invalid at this stage, he will have to appear in all the seven papers afresh, the availing of the said chance by the petitioner is condoned and the respondent' Institute of Chartered Accountants of Pakistan is directed to declare the result of the said paper i.e. "Information Technology". Needless . To observe if the petitioner fails this time, he will have to appear in all the papers. There shall, however, be no order as to costs.