' MUHAMMAD JEHANGIR ARSHAD, J.---This constitutional petition seeks quashment of the proceedings taken by Board of Intermediate and Secondary Education, Multan whereby the petitioner was directed to appear in 9th and 10th class examination afresh in terms of rule (20) of the Secondary School Certificate Partwise System Examination Rules, 2003.
2. The facts in brief are that petitioner appeared in 9th Class Examination, 2003 under Roll No,128799 and was declared successful having secured 231 marks. He then appeared in 10th Class examination but as he was found in possession of some illegal material, therefore, an unfair means case was registered against him and resultantly he was disqualified for two examinations i.e, Annual 2004 and Supplementary, 2004 vide decision taken by the Board on 13-5-2004. After the expiry of said period the petitioner submitted his Form for appearing in Annual-2005 examination for .10th class only and Roll No,3996 was allotted to him. The petitioner thereafter, physically appeared in the said examination but his result was not declared, whereupon, the petitioner approached the respondent-Authorities and through Letter No, ACE (M) 36916, dated 28-9-2005 he was directed to submit one attested photo and his Urdu as well as English signatures, which needful was also done by the petitioner but the Board refused to declare his result and consequently informed him on 22-5-2006 that in view of rule 20 framed by the Board for Secondary School Certificate Part-wise System Rules, as he was found using unfair means in 10th examination, therefore, his result of 9th Class which he had already passed has been scratched and petitioner could not appear in 10th Class only, rather he had to appear as a fresh candidate for 9th and 10th Class examination, therefore, his result could not be declared in view of the decision taken by the Unfair Means Committee. This was conveyed to the petitioner through Letter No,94 ACE (Secondary), dated 22-5-2006. The petitioner through this constitutional petition has challenged the said order.
3. Report and parawise comments were called for from respondent-Board which were submitted, wherein, 'by placing reliance on the above mentioned Rules, the same plea was taken. However, keeping in view the respective contentions of the parties, this writ petition was admitted to regular hearing with the following note:-- ' "The question as to whether Rule 20 of the Partwise System Rules, 2003 framed by the Board of Intermediate and Secondary Education, Multan empowering the Board to scratch the examination of 9th class of the petitioner though he has passed the same and is involved in the unfair means case in 10th class examination and is disqualified, is a statutory rule or the rule made by the Board of Intermediate and Secondary Education, Multan in exercise of its rule making power and that the said rule is not a fresh one, requires consideration."
4. As Mr. Muhammad Amir Bhatti, Advocate had been appearing in this Court in such like matter relating to Bahau-din-Zakariya University, Multan, therefore, he was requested to appear and assist this Court as amicus curiae.
5. Learned counsel for the petitioner has argued that firstly the petitioner was never conveyed the decision about scratching of his result of passed 9th class examination when he was disqualified for two examinations through letter, dated 13-5-2004 and secondly the charge-sheet received by him on 28-2-2004 did not contain any reference, either to the said Rule or the penalty provided under the Rules, rather the same only referred to unfair means case as an offence under rule (5)(ii) from Chapter 6 of the Board's Calendar relating to punishment for use of unfair means in the examination of the Board and according to the above rule the only penalty was disqualification from passing a particular examinatipn and from appearing in the immediately following examination (annual or supplementary), if the offence is intentional, and the decision taken by the Board and conveyed to the petitioner on 13-5-2006 did contain the said penalty and petitioner after the expiry of said period was allowed by the Board to appear in 10th class examination only for which he was issued Roll No,36916. The learned counsel further contended that after imposing the penalty of disqualification from appearing in two examinations through the decision taken on 13-4-2004, the Board had got no jurisdiction to impose the second penalty by way of scratching his result of 9th class which amounts to double punishment. It is next contended that rule 20, ibid referred to above is not only harsh but also against the principles of natural justice inasmuch as, on the basis of the said rule the annual examination already passed by the petitioner without any allegation of unfair means case is being scratched for no fault, whereas for the fault of alleged commission of unfair means in 10th class examination, he was already imposed penalty of disqualification from appearing in two examinations. Lastly, it is argued that the petitioner has been proceeded against without any show cause or affording opportunity of hearing before taking the decision of scratching his result of 9th class in exercise of the powers used by the Board under the said Rules.
6. On the other hand, learned counsel for the respondent-Board has supported the stand taken by the Board, by arguing that as Board of Intermediate and Secondary Education, Multan has got the power to scratch the result of the petitioner of 9th class in terms of rule 20, therefore, the said decision has been correctly taken by the Board which cannot be challenged before this Court in constitutional jurisdiction, on the ground of same being harsh.
7. However, Mr. Muhammad Amir Bhatti, Advocate learned amicus curiae has argued and rightly so that after disqualifying the petitioner from two examinations vide letter, dated 13-5-2004 in the light of the charge-sheet issued on 8-4-2004 making no reference either to rule-20 mentioned above or initiating any proceedings to this effect by Unfair Means Committee, the action of the Board cannot sustain in law.
8. I have considered the abovementioned arguments of learned counsel for the parties and have also gone through the record as well as rule 20 which is reproduced below:- {{URDU TEXT}} ' Almost similar question came up for consideration before this Court in "Hafiz Ahmad. Sufyan Arshad v. Board of Intermediate and Secondary Education, Faisalabad" (2001 CLC 759). Paragraphs 3 and 4 of the abovementioned judgment are reproduced for ready reference:-- "(3) In its reply/comments, the respondent Board claims that impugned action is valid and has been taken under para. No,38 of Notification No,1, dated 4-2-1998 which has overriding effect. Para. 38 reads:-- {{URDU TEXT IMAGE}}
(4) The charge-sheet/show-cause notice is Annex "B/1". It is a printed form, which reproduces the relevant rules concerning offences and punishments. It does not contain or refer to para.38. This charge-sheet to the petitioner mentioned in rule 5(ii) which conveys the message as to why action under rule 5(ii) be not taken on account of the petitioner having been found in possession of illegitimate material while appearing in the subject of Chemistry Part-II in the F.Sc. Examination under Roll No,30792. The decision of the Committee as conveyed to the petitioner is Annex "C" and it again expressly states that:-- {{URDU TEXT}} ' It will be seen that at no stage the Board notified the petitioner that he should show cause against the cancellation of Part-I Examination nor in fact the Disciplinary Committee cancelled the result of the examination in which the petitioner appeared under Roll No,30792 in Annual 1998. Petitioner appeared in Part-II Examination in Annual 1999 under Roll No,4598. Learned counsel for the petitioner is right in emphasizing upon the use of word 'particular' in rule 5(ii). The word 'Particular' would confine again to the examination in which the candidate was found in possession of illegitimate material or using other unfair means."
' The learned Judge, after discussing both the above mentioned provisions, came to the following conclusions:-
(1) at no stage the Board notified the petitioner (in that case) that he should show cause against cancelling the Part-I examination;
(II) as the result of F.Sc Part-I (in that case) was not in dispute, therefore, same had become a past and closed transaction and there did not seem to be any logic or reason that for a particular paper, the result of an undisputed examination be also annulled;
(III) the charge-sheet did not refer to the para. Authorizing the Board to scratch the result of Part-I and therefore, the Board had no jurisdiction to rely upon the said para. For scratching the result and
(IV) After accepting the admission form for taking part in second examination as well as issuance of roll number and allowing the petitioner to appear in the examination, it was not open to the functionaries of the Board preparing and announcing the result of part second examination to hold that the result of Part-I examination stood annulled, and even if they could so declare but a prior notice to that effect had to be given to the petitioner.
9. Perusal of the above mentioned judgment indicates that it rests almost on similar facts and circumstances with the only difference that in the cited case the candidate/petitioner was the student of Intermediate class whereas, the present petition is student of secondary education i.e, 10th class. However, the language of the disputed rule in both the cases is almost the same. I am, therefore satisfied that the law declared by this Court in the referred judgment is fully applicable to the fact and circumstances of the present case and I have no reason not to be guided by the dictum laid down therein. In the present case also the charge-sheet issued to the petitioner did not contain or refer to rule 20 above, but he was reminded of the fact that whatever he had done was an offence under rule 5(ii) of Chapter of Board's Calendar, which entails punishment of disqualification from two examinations and the same decision was taken by the Board and conveyed to the petitioner on 13-5-2004.
Similarly, nothing has been produced by the Board to satisfy this Court that petitioner was ever notified by the Board to show cause against the cancellation of his 9th class examination nor the original decision of the Disciplinary Committee cancelling the result of 9th class examination has been placed on record, therefore, in the absence of any material to this effect, 1 have no hesitation to hold that the only decision taken by the Board against the petitioner was one, dated 13-5-2004 disqualifying him from two examinations; and further after the expiry of period of disqualification referred to above, not only the Examination Form of the petitioner was accepted by the Board but he was also issued roll number and was also allowed to appear in the examination and at no stage the petitioner was apprised of the cancellation of his result of 9th class examination, which he had already passed. Therefore, the Board subsequently could not withhold the result of the petitioner on the ground that as a result of is 9th class examination stood cancelled in terms of rule 20, ibid, therefore, without appearing in the said 9th class examination he could not sit in 10th class examination.
' Finally, the learned counsel appearing on behalf of the Board frankly conceded that except Charge Sheet, dated 28-4-2004 which only refers to rule 5(ii) no Charge Sheet was given to the petitioner or was ever given any show-cause notice before cancelling his 9th class result in terms of Rule 20. Therefore, the action of the Board being violative of principles of natural justice cannot be approved in the light of the law laid down in the case "Haq Nawaz v. The Province of Punjab through Secretary, Home Department Lahore and 3 others" (PLD 1976 Lahore 1013) and "Board of Intermediate and Secondary Education, Lahore v. Ala-ud-Din and another" (1972 SCM R 13).
10. The net result of above discussion is that this petition is allowed and the result of 9th class examination of the petitioner is declared as intact and its cancellation by the Board through order, dated 22-5-2006 is declared as an act without lawful authority. The respondent-Board is directed to issue result card to the petitioner within fifteen days from the date of announcement of this judgment.
11. Before parting with this judgment I would like to acknowledge the valuable assistance rendered by the learned amicus curiae.