SYED ASGHAR HAIDER, J.---This judgment shall dispose of the instant petition (Writ Petition No,7248 of 2007) as will as Writ Petition No,7208 of 2007, emanating of common questions of law and fact.
1. The petitioners appeared in the examination of Development Journalism Part-II (Annual), 2006, when paper III of Mass Communication (Development Journalism) Part-II, Annual Examination, 2006, was circulated, a large part of the paper set was not from within course. There was commotion by the students, including the petitioners, they agitated the matter before the Superintendent of the Examination Hall, the protest was so strong that the Controller of Examination, respondent No,2, had to intervene, he listened to the grievance of the students and agreed to award 30 marks as compensation to all students appearing without discrimination, to, off-set the effect of this lapse. The petitioners and other students thereafter agreed to continue with the examination. The result of said Exam. Was announced on 11th May, 2007, it then transpired that the promise made by respondent No,2 was not adhered to and the agreed 30 marks were not awarded. The petitioners, therefore, agitated the matter before respondent No,1, who in order to salvage the situation and alleviate the grievance of the petitioners referred the matter to the Board of Studies, consisting of eight members of faculty, headed by Dr. Moghees-ud-Din Sheikh, to determine, whether the said paper was out of course or not and if set out of course, to how many marks were students entitled: A meeting in this, context was held by the Board of Studies on 27-6- 2007, it unanimously resolved and decided that the paper was not from course prescribed and, therefore, students be awarded 25 marks without discrimination. The said decision was communicated to respondent No,1, but he declined to adhere to the recommendations of the Board of Studies, aggrieved thereof the present petitions.
2. Learned counsel for the petitioners contended that paper admittedly was not from within course, therefore, the students could not be expected to answer these questions, this lapse and error has played havoc with their career, they were not only traumatized but also had to suffer financially, it is the_ legal obligation of respondents including the Board of Studies to ensure that papers are set in accordance with syllabus and course, any deviation in this context constitutes a fatal lapse and, therefore, the petitioners are entitled, to compensatory marks, he also submitted that respondents had themselves offered a solution to this omission and therefore, they cannot now be permitted to resale from the agreed position. Non-adherence committed is violative of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973, the respondents are obliged in law to discharge their duties and, functions in accordance with law and are to set paper from within syllabus prescribed.
3. The learned Legal Advisor of the respondents, Raja Muhammad Arif, vehemently contested this position and opposed it, according to him the petitioners have no locus standi or cause of action to bring the petitions, the award of compensatory marks as claimed by the petitioners, falls within ambit of grace marks, which cannot be awarded in view of the judgment of the apex Court reported as University of the Health Sciences Lahore and others v. Sh. Nasir Subhani and others PLD 2006 SC 243 and also on account of the fact that the University has not given any guarantee to the studentsthat they shall pass all examinations. Lastly he contended that the writ petitions are not maintainable because no fundamental right has been infringed or violated. On merits, he has frankly conceded that at least two questions, set in the said paper, were not from within the course prescribed.
4. I have heard the learned counsel for the parties. University of the Punjab is governed by the University of the Punjab Act, 1973, the Act defines the powers and authority of the Chancellor and Vice-Chancellor. Section 4 of the University of the Punjab Act, 1973, enumerates the powers of the University, section 4(c) bestows upon the university a power to hold examinations, award and confer degrees, diplomas, certificates etc. While section 4(x) bestows upon the University also powers to do all acts and things, whether incidental to the powers aforesaid or not, as may be requisite in order to further the objects of the University as a place of education, learning and research. Section 8(3) of the University of the Punjab Act, 1973, deals with the courses and curricula to be taught. Section 8(3) is reproduced for ready reference:-- "The courses and the curricula shall be such as may be prescribed."
It would be advantageous to state here that the word prescribed used in this section is very significant and is of paramount importance. Prescribed is defined by Webster's Law Dictionary as direction or rule to be followed; ordain; enjoin, to order the use of. It, therefore, clearly reflects that the students are required to be taught from the course and curricula which is prescribed and by implication they can be subjected to examination only from within and not out of the curricula and syllabus prescribed. Chapter III of the University of the Punjab Act deals with the office of the University. It is headed by the Chancellor, who has been granted powers of revision and has also been bestowed with authority to examine the propriety, correctness and legality of an order.
Section 15(1) of Act (ibid) deals with the powers and duties of the Vice-Chancellor. Section 15(4)(iv) deals with the powers of the Vice-Chancellor to appoint paper setters and examiners for all examinations, after receiving panels of names from the concerned authorities, while section 15(4)
(v) deals with powers of Vice-Chancellor to make arrangement for scrutiny of papers, marks and results as he may consider necessary, while section 15(4)(vi) deals with his authority to assign powers to teachers, officers and other employees of the University to take up- such assignments in connection with examinations and other activities of the University which he considers necessary.
Chapter IV of the Act (ibid) deals with the University Authorities. Section 22(v) deals with the Board of Studies, therefore, it is clear that the Board of Studies has been enacted and constituted for a purpose. Schedule attached to the First Statute of the University of the Punjab Act enumerates the members of the Board of Studies and also defines their functions, under section 4(6), which are:--
(a) to advise the Authorities on all academic matters connected instructions, publication, research and examination in the subject or subjects concerned:
(b) to propose curricula and syllabi for all degree, diploma and certificate courses in the subject or subjects concerned:
(c) to suggest a panel of names of paper settlers and examiners in the subject or subjects concerned; and
(d) to perform such other functions as may be prescribed by Regulations"
In sections 4 and 6(a) the word "advise" is again very significant. Likewise section 6(d) relates to other functions as may be prescribed. It is in this back drop and back ground the present controversy has to be examined.
5. The learned Legal Advisor of the University has frankly conceded that the paper subject matter of the dispute, contained two questions which were not from within the course, therefore, the students raised commotion and refused to take examination, the matter was brought to the notice of the Controller of Examinations, he intervened and assured the students that they would be awarded 30 marks as compensation, without discrimination to ward of the impact of this lapse.
6. The question now arises could the Controller of Examination grant such relief to the aggrieved students/petitioners or not. The administrative powers of the Controller of Examination do not bestow such powers on him, therefore, obviously this concession was without authority. But the matter does not end here. When the result was announced the students were not awarded the marks promised so they raised issue again with the concerned quarters and protested, the protest was so strong that the Vice-Chancellor himself intervened in the matter and thereafter he agreed to refer the matter to the Board of Studies and made a formal reference in this context, directing them, to determine whether the paper was out of course or not and if it was out of course, what was the relief the petitioners were entitled to. It goes without saying that the Board of Studies comprises of renowned educationists, comprising men and women of eminence who are highly qualified and have spent ages in the field of education, they are also well conversant with their functions and authority and are also bestowed with the task of setting papers and appointing paper setters. The question again arises as to whether the Vice-Chancellor was authorized to make such reference to the Board of Studies or not. Section 15(4)(v) of the Act ibid bestows upon him such powers, therefore, reference was rightly made to the Board of Studies. The Board of Studies after examining- the dispute and the reference held that two questions were not from within course and, therefore, advised that the students/petitioners be granted -25 compensatory marks, to alleviate their suffering. The Vice-Chancellor instead of adhering to the advise of the Board of Studies refused to accept the recommendations, aggrieved thereof the students approached the Chancellor of the University, had also did not come to their rescue, therefore, they had no remedy but to knock the door of this Court. The objection of the learned Legal Advisor that, there has been no infringement of any fundamental right, therefore, the present remedy is not proper, does not hold water. Because it is the right of each individual to be dealt with in accordance with law and access to law and justice is an unfettered fundamental right, it has 'so been declared by the Apex Court in Aftab Shahban Mirani v. President of Pakistan 1998 SCM R 1863 while interpreting Article 4 of the Constitution.
7. The pivotal question for adjudication is whether the advice tendered by the Board of Studies is binding upon the Vice-Chancellor or not. The word "advice" has been defined in Black's Law Dictionary:-- Advice Guidance offered by one person, esp a lawyer, to another.
While Webster defines "advice":-- "Encouragement or dissuasion; counsel; suggestion.
2. Often pl. Information notification.
3. Obs Deliberation; fore-thought; hence, opinion, Collins defines "advice"- Suggestions or opinions given to someone about what they should do in a particular situation.
It appears from this definition that the word advice by and large means:-- "Guidance by someone who has authority over the subject and is well conversant with its implications and can give proper guidance and counsel.
Article 48 of the Constitution of the Islamic Republic of Pakistan, 1973, also deals with the word advice, in this Article the word virtually assumes the meaning of a direction. Article 48 of the Constitution reads:-- 48(1) In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet or the Prime Minister: Provided that the President may require the Cabinet or, as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall act in accordancewith the advice tendered after such reconsideration."
Therefore, in case the President disagrees with the advice tendered by the Prime Minster he only has power to refer the matter back to the Prime Minister or the Cabinet to reconsider the same and thereafter, if referred back, it is incumbent and mandatory upon him to adhere to and act on this advice. Keeping this principle in mind the Vice-Chancellor only had authority to refer the matter back to the Board of Studies for reconsideration, if he was not satisfied with the recommendations made. This was not done, he proceeded to ignore the advice completely and refused to implement the recommendations made, therefore, he acted beyond his authority and that too without assigning any reason. In the judgment reported as University of the Health Sciences Lahore and others v. Sh. Nasir Subhani and others PLD 2006 SC 243 it has been held that:-- "Upon hearing learned counsel for the parties, we entertain serious doubts whether the Vice- Chancellor of University has statutory powers under the statute of the University or any other law for the time being in force to grant grace marks in each subject and thereby deteriorate the quality of education which has already gone below standard. The Syndicate of a University might have certain discretion but the Vice-Chancellor alone, in our, opinion, would not be competent to exercise all the powers of the Syndicate and benevolently grant grace marks to the failed candidates in theory as well as practical subjects."
A reference has been made to the powers of Vice-Chancellor vis-a-vis the Syndicate of the University which also has been enacted in the statute (ibid) it has been held that the Vice- Chancellor does not have the powers of Syndicate, thus on this analogy the Vice-Chancellor does not have the powers to override the advice of Board of Studies. It is also worthwhile to mention here that the students are required to be taught from the curricula and courses which are prescribed, thus, if they are subjected to examination beyond the prescribed coursed the University authorities fail to perform their duty under the University of the Punjab Act, 1973. Therefore, the recommendations made by the Board of Studies were required to be honored and adhered to by respondent No,1 and he had no discretion to override such advice.
8. Now adverting to the other objections raised by the learned counsel for the respondent No,1 that the award of grace marks is violative of the judgment of the Honourable Supreme Court of Pakistan reported as University of the Health Sciences Lahore and others v. Sh. Nasir Subhani and others PLD 2006 SC 243:- The judgment is distinguishable on facts. The petitioners are not seeking grace marks they, in fact, pleaded before the University Authorities that they be awarded compensatory marks to offset the effect of a paper which admittedly was not from within course. Compassionate marks and grace marks are two different things. Grace marks are always awarded to an individual while compassionate marks are awarded to a class of individuals and it is worthwhile to mention here that the University had earlier entertained such requests and has awarded such marks. (The details were provided by the learned counsel for the petitioners) and are reproduced for ready reference:-- Sr.No.Subject Year Compensatory
1. M.A. Urdu Part-I 2002/A 37
2. M.A. English Paper-II 2004 25
3. M.A. English Paper-I 2005 15 In these circumstances the students/petitioners have only prayed that the concession awarded to them by the Board of Studies be honored especially when the Vice-Chancellor who is custodian of law and is administrative head of the University himself offered this solution and University has been granting such concessions in past. Therefore, on equitable grounds he also was required to fulfil his commitment and word to set an example, that promises are not broken.
9. The objection raised by the learned counsel for the University is also not tenable because the judgment referred to above was in the notice of the University authorities (respondent No,1) despite that they referred the matter to the Board of Studies, meaning thereby, they also accepted that the dispute did not fall within the ambit of grace marks, rather fell in domain of compassionate marks, therefore, the objection is without force and is thus repelled.
The result of the above discussion is that the petitions are allowed with costs, as prayed for.