' M. TABASSUM AFTAB ALVI, J.--- The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following relief is solicited by petitioner:--- "It is, therefore, very humbly prayed that by accepting the instant writ petition the respondents may kindly be directed to do needful for issuance of result card (as being successful candidate in matriculation examination) in favour of the petitioner. Any other relief which this Hon'ble Court deems fit or proper may also be given to the petitioner."
2. Precise facts giving rise to the instant writ petition are that petitioner appeared in Matriculation Examination, Annual 2009 who was allotted Roll No,120575 by Board of Intermediate and Secondary Education, Mirpur. It is alleged that due to some hard talk with Examiner, at the eve of announcement, his result was withheld on account of which a bogus charge sheet was served upon him which was repudiated. After inquiry the matter was decided in favour of petitioner, however, he was informed about failure in the paper of Chemistry, hence, he submitted an admission form along with requisite fee to Board of Intermediate and Secondary Education, Mirpur.
The admission form, however, was returned with note of the concerned office dated 14-11-2009. It was inserted in the said note that by obtaining 471 marks vide Roll No,120575 petitioner had passed the examination, hence, his form was returned. It is further stated that even Controller Examinations-respondent vide script dated 17-10-2009 intimated to the petitioner that he had passed the examination through Roll No,120575 by securing 471 marks, therefore, admission form for re-appearing was accordingly returned. The grievance of petitioner is that despite returning of admission form for re-appearing in examination and admission in clear terms that he had passed examination, the respondents failed to issue result card as a successful candidate in his favour, hence, the instant constitution petition.
3. After admission of writ petition the respondents were summoned for filing written statement who filed the same, wherein it is stated that although petitioner had appeared in Matriculation Examination vide Roll No,120575, however, due to charge levelled against him his result was cancelled by the disciplinary committee who was intimated vide letter dated 7-7-2009: It is also stated that although petitioner applied for appearance in supplementary examination in the paper of Chemistry, however, his admission form was mistakenly returned with note that he had already passed the examination, hence, prayed for dismissal of writ petition.
4. The learned counsel for petitioner, Mr. Maqbool-ur-Rehman Abbasi, vehemently argued that Controller Examinations Intermediate and Secondary Education Board, Mirpur, vide script dated 17- 10-2009 admitted that petitioner had passed examination of Matriculation by obtaining 471 marks, hence, respondents cannot be declined from their version due to principle of estoppel. The learned counsel pressed into service that even Secretary Board, vide note dated 14-11-2009 intimated to petitioner that by securing 471 marks he had passed the examination, therefore, admission form for re-appearing in subject of Chemistry was returned. The learned counsel for petitioner pressed into service that 3 years period of petitioner has already been spoiled by the respondents, therefore, prayed for issuance of solicited writ. The learned counsel in support of his contentions referred to and relied upon the following case-law:---
(i) Muhammad Saleem v. Azad Government and 4 others (2006 SCR 88) and
(ii) College of Physicians and Surgeons Pakistan v. Wafaqi Mohtasib and others (PLD 2003 Karachi 667).
5 The learned counsel for respondents, Syed Nazir Hussain Shah Kazmi, admitted that petitioner was informed by Controller Examinations, vide script dated 17-10-2009 that he had passed the examination. The learned counsel further admitted that Secretary Board, vide note dated 14-11- 2009, also intimated to the petitioner that he had already passed the examination by securing 471 marks, hence, his admission form was returned. However, the learned counsel submitted that in fact result of petitioner was cancelled because of using unfair means, who was mistakenly informed about passing of examination due to computer error, hence, craved for dismissal of writ petition.
6. After hearing the learned counsel for parties at length, I have perused the contents of writ petition examined the appended record with utmost care.
7. Admittedly petitioner appeared in Matriculation Examination Annual 2009 who was allotted Roll No,120575. From perusal of note of Secretary Education Board, it reveals that by securing 471 marks petitioner had passed the examination, therefore, his admission form for re-appearing in Chemistry subject was returned to him vide No,9928 dated 14-11-2009. Even Controller Examinations Board of Intermediate and Secondary Education, Mirpur, vide Script bearing No,19929 dated 17-10-2009 also intimated to the petitioner that by obtaining 471 marks, he had passed the examination, therefore, his form was accordingly returned. The Controller was also summoned who appeared in person before the Court on 21-12-2012 and admitted that petitioner was informed that he had passed the examination through the note and script supra, hence, his form for re- appearing in examination was returned. As the respondents admitted that petitioner by securing 471 marks had passed the examination, hence, his form for re-appearing in the subject of Chemistry was returned which admission is binding on the respondents who cannot be allowed to blow both hot and cold in the same breath. An identical point came under consideration before the apex Court in case titled Muhammad Saleem v. Azad Government others (2006 SCR 88), wherein at page 89 of the report it was held as under:--- "The petitioner is now estopped by his conduct resile from his statement which he made before the High Court particularly when he has not denied the same through specific ground and supported the same by an affidavit to that effect. It is said that principle of estoppel is applicable in the light of past conduct, therefore, it shuts the mouth of party. Under this principle a party cannot be allowed to blow both hot and cold in the same breath."
' The similar point was considered by Karachi High Court in case titled College of Physicians and Surgeons Pakistan v. Wafaqi Mohtasib and others (PLD 2003 Karachi 667). At page 673 of the report it was held as follows:--- "The petitioners by their such act had given a clear and unequivocal understanding to the candidates that they would be required to secure 50% marks for clearing the theory paper for their eligibility to appear in the oral and Practical/Clinical Examination. Inadvertence, negligence or mistake on the part of petitioners to mention the pass percentage as 55% in the prospectuses issued subsequent to the decision of the Examination Committee could not be allowed to adversely affect a candidate who had appeared in the theory paper on the assumption that he would clear the same on securing 50% marks. For the above proposition reliance is placed on the principle of estoppel as enumerated in Article 114 of the Qanun-e-Shahadat Order. According to the principle of estoppel when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief then neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. While applying this principle to the facts of this case it is to be noted that the petitioners by making a declaration of the pass percentage as 50% in the prospectus made a certain representation regarding the existence of a fact. Even presuming that such declaration/ representation was on account of inadvertence, mistake or negligence, it would be immaterial as a representation even when made innocently or mistakenly could operate as an estoppel. Respondent No,3 and other candidates appearing in the theory paper for clearance of M. C. P.S. Examination believed the representation to be true in pursuance whereof they appeared in the theory paper. It has also not been established that respondent No,3 was aware of the fact that pass percentage for clearing theory paper was raised to 55%. In the circumstances, respondent No,3 could not be denied the benefit of the representation made by the petitioners in the prospectus which was available to respondent No,3 and other candidates for gathering information regarding the various aspects of the examination including the pass percentage to be secured by him. Respondent No,3 by securing 50% marks in the theory paper should have been declared to have passed the theory paper and eligible to appear in the Oral and. Practical/ Clinical Examination."
8. The contention of the learned counsel for respondents that mistakenly petitioner was declared as passed, hence, he was not entitled for result card is misconceived. It is settled principle of law that no one can suffer on account of the act of the Authority who had to pass an order which was illegal or without lawful authority. The person who had been wronged on account of such action of Authority be entitled to be restored to the same position as of right to the maximum possible extent which he would have occupied. An identical point was arisen before the Hon'ble Supreme Court in case titled Sardar Asif Mehmood Raza v. Abdul Khamid and 7 others (2004 SCR 298), wherein at page 304 it was held as under:--- "The whole exercise of the official respondents cannot be termed as bona fide. If at the time of induction of respondent in service the post was not advertised who is to be blamed for this lapse.
The answer definitely is that the respondent cannot be blamed as he had not to advertise the post. The competent authority has been guilty of making irregular appointments, therefore, it cannot be allowed to turn round and terminate the service of the respondent after inducting him in service on permanent basis particularly when his appointment was not challenged in time by any other desirous person. The competent authority in the light of peculiar facts of this case was not vested with the powers to remove him from service on the ground that his induction in service was not regular. The benefit of lapses committed by the competent authority at the time of induction of the respondent in service cannot be allowed to take away the right of service which had vested to respondent as order of his appointment was given effect and in furtherance to the same he served the department as Driver."
' The aforesaid view was reiterated by the apex Court in case of Syed Imdad Ali Shah and 59 others v. Azad Government and 8 others 2003 PLC (C.S.) 1537 at page 1545 report it was observed as follows:--- "The arguments of the learned counsel for the appellants in Civil Appeal No,112 of 2002, carries weight that induction of untrained teachers in service was conditional because only from such areas untrained persons could be appointed as Primary Teachers from where trained candidates were not available. No person at the relevant time challenged the appointment order of any untrained teacher on the ground that despite the available trained person he was appointed as Primary Teacher. This shows that in order to meet the requirement of the Primary Teachers in various Primary Schools, the Government was constrained, in the absence of trained candidates, to keep the rules of 1994 in abeyance whereby a person Matric 2nd Division having PTC or equivalent qualification was held entitled to apply for the post of Primary Teacher. The appellants who were only Matric 2nd Division but were not in possession of PTC qualification were, therefore, allowed to appear before the departmental selection committee for determining their merit against vacant posts of Primary Teachers. There must be consistency in the policies of the Government. The Government cannot penalize any person for the blunder committed by it."
' The above view also finding support from case titled Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education Lahore and another (PLD 1994 Lah.
3). At page 8 of the report it was held as under:- "It is an established proposition of law that no one can suffer on account of the act of the authority, who has to pass an order or who has taken same action. In the case in hand, it stands established that it is the respondents who are at fault and if the petitioner would not have illegally been proceeded against and the paper would not have been snatched away from him if successful he could have been declared to have passed the said examination in the first attempt, and, therefore, depriving the petitioner of the opportunity of passing in the 1st Annual Examination is, definitely an act which is illegal and without a lawful authority. Therefore, the petitioner is entitled to be restored to the same position as of right to the maximum possible extent and hence is entitled to be given a full opportunity to appear in the subject of Maths. And on the basis of result thereof is also entitled to be declared to have passed the examination in the 1st Annual Examination and not in parts. There is no doubt that the loss or the injury which the petitioner has suffered cannot be 100% compensated but this Court has jurisdiction to put the petitioner to the same position in which he was entitled to be put to whatever extent it is now possible. Although the Rules of the Board are silent and do not cover the situation in question yet this Court is not powerless to do complete justice in the cases where there is no prohibition to adopt a particular course."
9. The petitioner submitted admission form for re-appearing in the relevant subject on 27-8-2009.
He was answered on 24-11-2009 that he had passed examination vide script bearing No, Board/Supplementary/ 19929 dated 17-10-2009 by Controller Examinations-respondent. If the admission form of petitioner would not have been returned, he could have passed the failed subject, in the year 2009. The respondents, therefore, have spoiled more than 3 years of petitioner's youth, hence equity demand that necessary direction for issuance of result card, by over- ruling the act of respondents to cancel his examination, be issued.
10. For the reasons enlisted above by accepting the instant writ petition, the respondents are hereby directed to issue result card as being successful candidate in Matriculation Examination, 2009 to petitioner forthwith. The costs shall follow the eventuality.