HAIDER ALI KHAN, J.- Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner has sought the following reliefs:- "(a) the impugned order No.UOM/L&E/14/380 dated 24.6.2014 of selection of respondent No.S for awarding Gold Medal may be declared illegal, void ab-initio and may be set aside forthwith";
(b) respondents may also be directed to select the petitioner for awarding Gold Medal;
(c) Any other remedy, to which the petitioner is entitled and this Hon'ble Court deems it appropriate may also be granted".
2. In essence, claim of the petitioner is that he passed B.S. (Hons) in Chemistry Session 2009 2013 from the respondent University and secured highest overall 3.71 CGFA in first attempt, without failing and improving marks and semester freezing, therefore, he is entitled for award of Gold Medal as per Rules and Regulations of the University.
3. It is worth mentioning that earlier, the petitioner had filed writ petition No.46-M of 2014, which came up for hearing before this Court on 08.5.2013. It would be appropriate to reproduce herein the concluding paragraphs i.e. Para 8 & 9 for convenience:- "8. The perusal of the order of the respondent/University, wherein respondent No.5 was held entitled for the award of Gold Medal reveals that the respondent/University has not decided the matter before it with conscious and independent application of mind and that is why it is in-deficient in contents and devoid of reasons, it is in violation of the fundamental rights guaranteed by the constitution, law besides. It is by now settled principle of law that every "lis" before any Court of law or even before quasi-Judicial authority may be disposed with the reasoned order and shall not be the result of whim and caprice and, as such, the impugned order is hereby annulled.
9. Having thus considered against this backdrop, we allow this petition and set aside the impugned order and send back the matter to the respondent/University for making decision of awarding of Gold Medal after affording opportunity of being heard to the petitioner as well as respondent No.5 and then decide the matter afresh strictly in accordance with law within period of fifteen (15) days positively. The petitioner and respondent No.5 are directed to appear before the respondent/University accordingly".
4. Pursuant to the above direction, the Academic Committee/respondent No.6 vide impugned order No.UOM/L&E/14/380 dated 24.6.2014, again selected the respondent No.5 for award of Gold Medal, which prompted the petitioner to file the instant writ petition.
5. We have heard learned counsels for the parties and have gone through the record. To have a clearer perspective on the case, it is important to quote the relevant rules of the respondent University for the purpose of awarding Gold Medal.
Award of Gold Medal.
18. A candidate who passes BA/B.Sc/BA theology examination (Regular or Private) in Two Years shall be awarded a gold Medal, provided he/she scores the highest marks amongst the candidates and obtains not less than 70% of the aggregate marks. Provided further, he/she passes both the examinations (i.e. Part-I and Part-II of BA/B.Sc/BA theology) as a whole.
28. Award of Gold Medal/Merit Certificate: i. 'University Gold Medal shall be awarded to a student, in each program of studies, who fulfills the following conditions: a. He/she has secured highest overall CGPA in a program of studies in first attempt without failing, or improving marks, in any course; b. He/she has not availed 'semester freezing' ii. In case of same highest CGPA, the Gold Medal will be awarded on the basis of highest percentage of marks obtained in overall degree program iii. Merit Certificates will be issued to the candidates securing 1st, 2nd and 3rd positions in overall degree program. Merit positions shall be determined in a manner prescribed above for award of Gold Medal.
Regarding the distinction, the relevant rule is reproduced as under:- Distinction: a. The 1st, 2nd and 3rd position holders shall be determined by summing up all the marks obtained in each terms b. A student shall be declared as Best Graduate if he/she obtains the highest number of marks in the aggregate of all Examinations provided he/she has passed each of the Examination in the first attempt.
6. The record shows that owing to the floods of 2010, the respondent No.5 was absent in the paper of Organic Chemistry in 2nd semester held on 9th August, 2010 alongwith 12 other students in the regular examination. Whereas, in the same paper and same examination, the petitioner No.1 appeared and passed the same paper securing A+ grade.
7. However, due to the floods remaining papers of states, GEN III, Math II, F-Bio-II and Islamiyat were postponed and rescheduled for 22.9.2010 to 28.9.2010 as make-up examination.
8. The respondent No.5 and other absent students appeared in the said make-up examination which is/was provided for in Rule 8 of the notification dated 17.6.2010, reproduced herein below:-
8. Make-up Examination: The students who have fulfilled all requirements for appearing in the final term examination but could not or did not appear in the final term examination for any reason or failed in aggregate in any subject a make-up examination shall be conducted within one month of the declaration of the result of the semester. The pattern, i.e. nature and number of questions and weightage of the make-up examinations shall remain similar to that of the final term examination. Students appearing in the make-up examination shall be charged double of semester exam fee.
Any student failing in the make-up examination shall be required to re-register for the same course as and when that course is offered in future. In case of need the head of the department is allowed to offer such course(s) during the summer semester.
There shall be no make-up exam for the mid-term. In such case(s) the student will lose 30% marks.
Note: In case a student has availed the facility of make-up exam, the same will be recorded in the transcript. Such students shall not be entitled for award of any merit certificate.
9. On 12.7.2013, respondent No.5 submitted an application to the respondent No.4 to consider the said make-up examination as final examination on the ground that due to floods, she could not appear in the Organic Chemistry paper 2nd semester in the regular exam.
10. On the aforementioned application, a merit sheet was prepared wherein the respondent No.4 mentions "The department of Chemistry should be advised in this as the candidate she is in run for Gold Medal. However, the Controller of Examination, on the same minute sheet gave his comments, which are reproduced as under:
(1) In the year 2010, the final semester exam was scheduled to be held from 9th August. The first paper of second semester was organic chemistry in which 11 students were absent, majority of them were female.
(2) The remaining exam was postponed to 22 September, 2010.
As the Chakdara Bridge was taken away by flood in last week of July, 2010.
(3) The 11 absent students were re-examined on 6'h October, 2010 and their exam was declared as Make-Up. However, the practical exam of the said paper was conducted along with other students of the class who took their paper on 9'h August 2010 & the result of the practical was handed over to the exam coordinator on 10 November, 2010.
11. The Registrar on same minute sheet at item 21 to 24 states as under:-
21. As per Annex A, the students who remained absent did not belong to areas across the bridge, there are students who belong to Dir(L);
22. The paper which was missed was taken in Make-up Examination and four papers were rescheduled (Annex B);
23. To consider make-up Exam as Normal Exam in this case will open a Pandora box for other departments in fact
24. it is suggested that Gold Medal may be awarded to deserving student.
12. The petitioner moved applications to assert his right over respondent No.5 but to no avail.
13. Despite the above-mentioned factual position, duly supported by the Rules and Statutes of the respondent No.1, the respondents in utter disregard to their own Rules and By-Laws issued impugned letter No.UOM/L&E/14/380. The relevant portion is reproduced herein below:- "The examination was passed in first attempt and as per rules for the award of Gold Medal (section 21, para a, b & c of the By-Laws for the conduct of examination of the University of Malakand 2003), Mst. Hafia Bibi has obtained more than 70% marks in the aggregate of all examinations and has secured first position in the class in the first attempt, therefore, she deserved to be awarded with a Gold Medal".
14. In support of the contention of the petitioner, reliance is placed on 2005 YLR-737 [Lahore] 'Ramiza Tahir Vs. University of Punjab through Vice-Chairman and 2 others, which is applicable on all fours to the facts of the present case.
15. In view of the above, we hold that according to Rule 28(a), passing of the exam in the relevant programme in the first attempt is a condition precedent for the award/eligibility of Gold Medal, hence, the nomination of respondent No.5 for the same by the respondents is illegal and without lawful authority. Therefore, we accept the writ petition and direct the respondents to award the medallion to the petitioner in case he is on merit according to the rules/statutes/bylaws of the University of Malakand.