SHEZADA MAZHAR, J.---Through the present petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the following prayer has been made by the petitioner:- "It is therefore respectfully prayed that order No, CE/P 644-ITR dated 12-11-2013 passed by the respondent may graciously be declared to have been passed without lawful authority and of no legal effect."
2. The facts necessary for disposal of present writ petition are that the petitioner is a Pakistani National who also got Canadian Citizenship. The petitioner migrated to Canada at the age of five years along with her parents in the year 2002. She got her early education from Canada without an opportunity to study Urdu at any level. She returned to Pakistan on 9-3-2011 and did her 0-Level exams from Cambridge University by studying Second Language Urdu (Easy Urdu). The Intermediate Board Committee of Chairmen issued her Equivalence Certificate on 30-8-2013 and her 0-Level was declared equal to Matric Examination. The petitioner applied for F.Sc. In Kinnaird College for Women, Lahore and selected inter alia Pakistani Culture as an alternative to Compulsory Urdu as allowed/permitted under Rule 49 (2) of the Calendar. During the course of studies, the petitioner was informed regarding new condition imposed by the Board for prior approval for appearing in the Intermediate Examination with Pakistani Culture subject in lieu of Compulsory Urdu as per the letter No,456/meeting dated 23-10-2013. The petitioner applied for the approval vide application dated 19-9-2013 which was duly approved/recommended by the Principal of the Kinnaird College for Women, Lahore. However, the respondent/ Board dismissed the application vide order No,CE/P 644-ITR dated 12-11-2013. Hence the present writ petition.
3. The learned counsel for the petitioner submits that petitioner remained abroad continuously for a period of three years preceding her 0-Level examination without an opportunity of studying Urdu there, therefore, she was entitled to opt "Pakistani Culture Subject" under the respondent/Board Calendar thus she has a vested right to appear in the examination with alternative subject; that the impugned order passed by the respondent/Board is contrary to the binding rules and therefore, not sustainable; that the respondent/Board has neither specified the policy nor pointed out the basis of new condition by contravening the rule before passing the impugned order. The same is contrary to statutory rules and regulations; that the condition of prior permission/approval was not enforced when petitioner obtained admission in the college, therefore, the same cannot be applied retrospectively; that the policy was not in field when the petitioner returned to Pakistan in March, 2011 and Rule 49 was holding the field and therefore, migrated to Pakistan. The new policy cannot be applied to the case of the petitioner; that the order passed by the respondent/Board is in violation of petitioner's constitutional right to be dealt with in accordance with law and therefore, liable to be set aside. In support of his contentions, the learned counsel for the petitioner relied upon Ghulam Sarwar v. Board of Intermediate and Secondary Education Bahawalpur through its Chairman and another (1985 CLC 2459).
4. On the other hand, the learned counsel for the respondent/Board submits that the decision of Punjab Boards Committee of Chairmen (PBCC) was duly approved by the respondent/Board in its meeting No,10/2012 held on 19-10-2012 and a Notification No,4/2012 was duly issued on 10-11-2012.
Under the said scheme subject of Pakistani Culture in lieu of Urdu Compulsory would be opted only for foreign students; that in order to clarify the option for the subject of Pakistani Culture instead of Urdu at Intermediate level the Board issued another Notification No,03/2013 dated 23-10-2013 wherein it was clarified that the facility of option of Pakistani Culture instead of Urdu would be available to such candidates who passed their 0-Level/Equivalent Examination from abroad. The said Notification was also circulated among all the Colleges/Higher Secondary Schools affiliated with the respondent/Board. Learned counsel for the respondent/Board further submitted that the petitioner has studied Urdu for her 0-Level certificate and therefore, she cannot avail the facility of alternative subject; that petitioner got admission in F.Sc. (Part-I) in Kinnaird College for Session 2013-15 and as per scheme of studies, she is not eligible to opt for Pakistani Culture in lieu of Urdu; that the new scheme of studies was in vogue prior to her admission in F. Sc. (Part-I). Further submits that college administration apprised the petitioner of this fact in view of the Notification dated 23-10-2013; that petitioner has no locus standi to agitate curriculum as it is the prerogative of the selected group of laureate which is not intervened by the Courts under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In this regard relied upon Hashaam Saeed and another v. National University of Computer and Emerging Sciences (NU-FAST) through Director and another (PLD 2011 Islamabad 10). Further submits that petitioner has no vested right to read a specific set of subjects to be chosen as per choice and that too against the curriculum ordained by the Board; that Superior Courts of this Country have categorically placed full confidence in the Board and have all the time refrained to interfere with the matters of Board. Submits that the order has been passed in accordance with the policy and law, therefore, should not be interfered with by this Court.
5. I have heard the arguments and have also gone through the record of the case.
6. From the record it is revealed that the petitioner passed her O-Level examination in June, 2013 with distinction and applied for admission in Kinnaird College, Lahore which was allowed. She opted for Pakistani Culture as an alternative subject instead of Compulsory Urdu. She was allowed to take the subject by the College Administration, however, later on they informed that Board has changed the policy and therefore, she will be required prior permission from the Board for taking Pakistani Culture instead of Urdu. Therefore, she applied for the permission vide application dated 19-9-2013 which was duly recommended by the Principal of the Kinnaird College for Women. Her request was not replied, therefore, she sent a reminder on 4-11-2013 which was replied by the Board on 12-11-2013 and rejected the same on the basis of minutes of meeting dated 19-10-2012.
Notification No,4/2012 was also issued by the Board whereby it was agreed that in place of Urdu, Pakistani Culture will be offered to Foreign Students only, however, neither in the new scheme nor in the Act or in the Rules/ calendar of the Board/respondent, the words foreign student have been defined. The learned counsel for the respondent has referred to different meanings as given in the dictionary to state that only non-Pakistani are allowed to take Pakistani Culture and none others.
7. I am afraid the meaning given by the learned counsel for the respondent/Board if accepted, then the Board was required to dealt (sic) the Rule 49 from the Part-II of the University Calendar. In pursuance of said rule, the interpretation given by the respondent counsel cannot be accepted.
8. The rule which is relevant in the case in hand is Rule 49 of the Calendar which reads as under:-- "A Candidate falling in any of the following categories may be permitted to take the subjects of Pakistani Culture or Easy Course of Urdu and English Elective; provided he passes Geography of Pakistan at the Secondary School level within two years from the date of admission to a college;
(1) 'O' level, Grade- 10 equivalent to Secondary School or candidates who opted Geography of Pakistan in Secondary School Examination in lieu of Urdu Compulsory at the Intermediate level.
(2) A Pakistani national who has remained abroad continuously for a period of three years preceding the examination and did not have any opportunity to study Urdu upto the Secondary School level in a foreign country.
Those students of foreign origin offering Pakistani Culture, who have not studied under the British or American system of education or have not appeared or passed such examination at G.C.E.
Ordinary or Higher level, will be granted the concession of taking English (compulsory) in lieu of Higher English.
He will also have to take English Elective in lieu of English compulsory.
9. Admittedly, the petitioner's case falls under Clause 49(2) of the Calendar. She had no opportunity to study Urdu during her education from 2002 to 2011 when she returned to Pakistan from Canada. She also did not study Urdu as first language for her 0-Level Examination and opted for Urdu as second language, therefore, she was entitled to opt for Pakistani Culture instead of Compulsory Urdu in view of Rule 49(2) of Part-II of the University Calendar.
10. The new scheme of studies through minutes of meeting Notification No,4/2012 adopted by the respondent/Board did not state any thing which explains the Foreign Students. The Notification No,3/2013 dated 23-10-2013 through which earlier Notification No,4/2012 was clarified also did not explain the foreign students but only states that "this facility could be availed of by such candidates who passed their "0" Level" or equivalent examination from abroad sans the subject of Urdu". The requirement of prior permission also come up for the first time in this notification i.e, No,03/2013 dated 23-10-2013. This Notification dated after the first application dated 19-9-2013 'of the petitioner. The said Notification No,03/2013 dated 23-10-2013 cannot be applied retrospectively.
For this reason also the impugned order is liable C to be set aside.
11. The powers of. Board are given in sections 20 and 21 of the Punjab Boards of Intermediate and Secondary Education Act, 1976 which states:-
20. Powers of a Board to make Regulations.
(1) A Board may, subject to the approval of the Government, frame regulations, not inconsistent with the provisions of this Act, to carry out the purposes of this Act provided that
(i) a Board shall not propose' draft of regulations affecting the constitution or power of any authority of the Board until such authority has been given an opportunity of expressing an opinion in writing upon the proposals;
(ii) the draft of Regulations shall be forwarded to the Controlling Authority and shall not be effective until it has been approved by the Controlling Authority, and
(iii) a Board shall not have the power to frame any rules or regulation concerning efficiency and discipline of the officers/officials and other employees which is not in conformity with rules made by the Government.
(2) In particular and without prejudice to the generality of the foregoing powers, such Regulations may provide for:
(a) the terms and conditions of service of the employees of a Board, including matters relating to grant of leave and retirement of such employees; Explanation: The terms and conditions should be in conformity with rules applicable to Government servants carrying equivalent pay scales and other benefits.
(b) the constitution of. Pension or Provident Fund or both for the benefit of the officers and other employees of a Board; the admission of institutions to the privilege or recognition and withdrawal of recognition;
(d) a general scheme of studies, including the total number of subjects to be taught and the duration of courses; and all other matters required under any of the provisions of this Act to be prescribed by regulations.
21. Powers of a Board to make Rules A Board may make rules consistent with this Act and the regulations to provide for:
(i) the inspection of institutions and the reports, returns and other information to be furnished by them;
(ii) the conditions of admission of candidates to the examinations held by it and their eligibility for diplomas, certificates and titles;
(iii) the manner and the form in which accounts of a Board shall be maintained; and
(iv) such other matters as may be required under the regulations to be provided in the rules.
12. Under section 20(2)(d) the powers of Board is to give general scheme of studies which are given in Chapter XI of the Part-I of the University Calendar, whereas under section 21(ii) the condition of admission of candidate to the examination held by it but these candidates cannot be inconsistent with the Act and Regulations.
There is another aspect of this case, the Notification No,04/2012 dated 10-11-2012 as well as Notification No,03/2013 dated 23-10-2013 was issued when the Rule 49 of Chapter-4 of Part-II of University Calendar was in field and the said rule was neither deleted nor modified/amended. The said rule is statutory in nature and has the force of law which cannot be overruled by a Notification issued by the Officers of the Board. Moreover under Chapter XI of Part-I of the University Calendar where scheme of studies for the Intermediate Examination is mentioned states:-- Intermediate Part-I (Class XI)Intermediate Part-I (Class XI)
A-Compulsory Subjects A-Compulsory Subjects Urdu 100 Marks (1) Urdu 100 Marks Note: Students who are not Pakistani Nationals will have the option to take either an Alternative Easy Course in Urdu or a Course of Study in Pakistani Culture.Note: Students who are not Pakistani Nationals will have the option to take either an Alternative Easy Course in Urdu or a Course of Study in Pakistani Culture.
English 100 Marks Or Civics For Non-Muslims 100-marksEnglish 100 Marks Pakistan studies 50-marks B-Elective Subjects B-Elective Subjects Three or more elective subjects comprising 6 papers of 100 marks each shall be taken from one of the following Groups: provided that if a subject comprises two papers, both the papers shall be taken together.Three or more elective subjects comprising 6 papers of 100 marks each shall be taken from one of the following Groups: provided that if a subject comprises two papers, both the papers shall be taken together.
14. These regulations are also not changed or amended by the respondent/Board, therefore, under the' said regulations also petitioner being Canadian National is entitled to opt for the Pakistani Culture instead of Compulsory Urdu.
15. Further the order/letter dated 12-11-2013 was issued by the Deputy Controller of Examinations who is not empowered/authorized to make any such decision rather such a part is non-existence as far as the Punjab Boards of Intermediate and Secondary Education Act, 1976 is concerned where only Controllers of Examination exist, therefore, the order passed by the Deputy Controller of Examinations on his own is liable to be set aside.
16. In view of what has been discussed above, the order dated 12-11-2013 passed by the Deputy Collector of Examinations is set aside. Resultantly, this petition is allowed and the petitioner is allowed to take Pakistani Culture as an alternative subject to Compulsory Urdu in her Intermediate Examination.