' SHAHID JAMIL KHAN, J.---Petitioner seeks direction for issuance of Improved Marks Result Card, which is asserted to have been withheld by respondent No.3 in violation of rules.
' Facts briefly are; that petitioner passed her Matriculation Examination with A + grade. In due course, she appeared in Intermediate Annual Examination 2014 and again secured A grade but could not get admission in Medical College, therefore, she opted to appear in Part-II Intermediate Annual Examination 2015 to improve marks. As per contents of the petition; while going for practical examination in subject of Biology, with her brother on motorcycle, she met a road accident and was hospitalized. Being absent in the practical examination, Revised Result Card was not issued. She, however, gathered information, from website, of improving marks in five subjects.
2. On notice, learned counsel for respondents Nos.1 to 3 appeared and requested for some time to seek instructions. Respondent No.3 was directed to provide opportunity of being heard, meanwhile, to petitioner and consider her case in accordance with law and compassionately by exercising parental jurisdiction. Opportunity of being heard was, accordingly, provided and copy of order dated 08.10.2015, passed by respondent No.3, was produced on next date of hearing. Petitioner's request for issuance of Revised Result Card of improved marks was declined; observing that her application was filed after two months and sixteen days. On merits, by referring to Rule 17(1) of Intermediate Examination Rules of Board of Intermediate and Secondary Education, Sargodha ("Intermediate Examination Rules"), it was explained that petitioner had discretion to appear in Part-I or Part-II or for both the parts (combined) or in any subject or subjects. Since, she opted to appear in Part-II for improvement of marks and remained absent in practical examination of Biology, therefore, Revised Result Card with the marks improved, in other subjects, cannot be issued. Rule 17(2) was also referred in support of the finding that petitioner was required to appear in Practical Examination to pass Part-II examination, entitling her for issuance of Improved Marks Result Card.
3. Learned counsel for the petitioner has produced copy of Notification No.08/15 dated 24.01.2015 and relied on its Item (ii), along with Rule 17(5) of the Intermediate Examination Rules, to contend that petitioner is entitled for issuance of Revised/Improved Marks Result Card on the basis of subjects in which she has improved marks excluding the subject of Biology. He has not denied that appearance in Practical Examination, to pass a subject, is mandatory.
' Learned Counsel for the respondents, at this stage, submits that the relied upon Notification No. 08/15 was issued by Gujranwala Board, therefore, cannot be considered. An official of respondent No.1, present in court, on Court's question has admitted that Sargodha Board has also adopted the amendments in Rules, as proposed in the Notification.
4. Heard, record perused.
5. Before analyzing the arguments, examination of the Rule 17 of the Intermediate Examination Rules is necessary, same is reproduced for this purpose:-- "17. Improvement of Marks
(1) For the purpose of improvement of grade/marks, a candidate will be provided with one examination opportunity in current prevalent syllabi within a period of one year after having passed the Intermediate Examination, in the same subjects/ group in which he/she previously passed the examination. However, it will be the discretion of a candidate whether he/she appears for improvement of marks in Part-I or Part-H or combined or in any subject/subjects. In the paper consisting of theory and practical, improvement of marks shall be determined on the basis of total marks after obtaining requisite pass marks in each component, separately; whereas on improvement of marks in any subject/marks, improved result shall be issued. In case a candidate fails to improve his/her grade/marks, his/her previous result will remain intact. However, a candidate desirous to improve marks must appear in subject/subjects; and such a candidate will be treated as 'Marks Not Improved', if he/she does not improve in grace-marks subject/s while improving marks in other subjects.
(2) As the Practical Examination includes in Part-II, hence, the candidates improving Part-I will appear without Practical and Part-II with Practicals or as prescribed by the Board from time to time.
(3) A candidate, who intends to appear for improvement of grade/marks, will not be entitled for the grant of grace marks or for grant of any scholarship or any other academic distinction.
(4) In order to improve his/her grade, a candidate will have to appear in the same Board from where he/she has previously passed his/her Intermediate Examination; provided he/she will have to do so before appearing in any higher examination conducted by any Board or University. Such a candidate, if successful in improving his/her marks/grade, shall be granted a fresh certificate on surrendering the certificate issued previously.
(5) When a candidate deposits his/her admission form for the purpose of improvement of marks/grade but cannot appear in the examination due to unavoidable circumstances, he/she will not lose his/her chance provided it lies within the period of one year."
(emphasis supplied)
' As it is admitted, during hearing, that amendments in "Marks Improvement Rules", reflecting in Notification No.08/15 dated 24.01.2015, have been adopted by Sargodha Board as well, therefore, the amendments are to be read in Rule 17. The Notification is reproduced for ease of reference:-- Board of Intermediate & Secondary Education, Gujranwala.
' Notification No.08/15 Dated: 24-01-2015 ' In continuation to this office Notification No. 76/13 dated 30-12-2013, it is hereby notified for the information of all concerned that the Chairman has allowed to implement the decisions regarding "Marks Improvement Rules" of Punjab Boards Committee of Chairman
(PBCC) Meetings dated 26-9-2014, item Nos.5 and 9 (confirmed by BOG in its meeting dated 01-12-2014) and 24-12-2014, item Nos.14 and 15 (in anticipation approval of the Board) w.e.f. SSC Part-II and HSSC Part-II (Annual) Examination 2015. The details are as under:- - ' If a candidate appeared in two subjects i.e. (X& Y) and secured higher marks in the subject of X then he/she will be awarded enhanced marks in the subject of X with the remarks "Marks Improved" while the old marks of the subject of Y will be awarded to the candidate in place of lesser marks.
' If a candidate appeared in more than one subjects and remained absent in one subject while the other subjects improved then he/she will be awarded improved marks in those subjects in which he/she improved and old marks will be given in the subject in which he/she did not appear. Iii) Facility of improvement of marks is provided to the candidates who passed two subjects through Boards at SSC/HSSC level after passing the GCE "0" & "A" level examinations. This facility is also provided to the candidates of Sanvia Amma/ Sanvia Khassa/Al-suna Shargia. iv) The candidate may improve his/her marks at the concerned Board from where he/she has already passed his/her examination. v) The candidates of all the Categories may improve their marks/ grades within two years in only one attempt instead of existing practice of one year. Sd- (Dr. Muhammad Jawwad Haider Shirazi)
SECRETARY (emphasis supplied)
6. Under the Rule 17(1), one opportunity is given to a candidate for improvement of marks, within two years (see amendment in Item (v) of the Notification) after passing Intermediate Examination. Discretion is given to appear in Part-I or Part-II or combined or in any subject/ subjects. Improved Marks Result Card is to be issued, subject to fulfillment of other conditions, as stipulated in the sub-rules.
Parties are not at variance on this interpretation of the Rule; they do not dispute, also, that appearance in Practical Examination, to pass a particular subject of Part-II, is mandatory. Other sub-rules are also not differently interpreted; however, learned counsel for the petitioner has relied upon sub-rule (5) of the Rule 17 to argue that absence in one subject does not preclude a candidate to reappear in the examination, within two years from passing Intermediate Examination. Even this assertion is not disputed by respondents.
' The controversy is regarding interpretation of sub-rule (1), as made by Respondent No.3 in its order dated 08.10.2015, which needs consideration. As noted above, issuance of result card is denied for only reason that petitioner had opted to appear in Part-II instead of subject(s). Though the Rule, ibid, speaks about the discretion given to a candidate, yet it does not carry specific prohibition of issuing Improved Result Card if a candidate improves marks in some of the subjects and remains unsuccessful in any other or does not appear, like in this case, in any of A the subjects. It is settled law that omission to prescribe a procedure should not be taken as prohibition.
Hon'ble Supreme Court of Pakistan in H. M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65), while dealing with stranger's right to file appeal held:-- "It is true that there is no express provision permitting such party to prefer an appeal against such an -order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice."
' Similar observations by Apex Court, under different circumstance, are given in Muhammad Naeem Kasi and another v. Abdul Latif and 7 others (2005 SCM R 1699), Hitachi Limited and another v. Rupali Polyester and others (1998 SCM R 1618) and Shahbaz Afghan v. The State (1993 SCMR 224).
' The August Court, by applying this principle of interpretation extended right of appeal to a stranger in the proceedings. Applying same ratio on instant case, it is held that a candidate who appears in Part-I or Part-II or combined, cannot be denied Improved Marks Result Card, if he/she improves marks in some of the subjects and remains unsuccessful or remains absent in some (or any) other subjects.
Other interpretation would make a class within a class. Benefit of item (ii) of the Notification is to be extended to all the candidates, endeavoring to improve marks.
7. Even otherwise refusal to issue Revised/Improved Marks Result Card, under the facts and circumstances of this case, does not appeal to mind. A candidate, who being courageous, appeared in Part-II (in all subjects) is denied improvement of marks merely because she was absent in Practical Examination of one subject. On the contrary, a candidate who opts to appear only in two subjects, for Improvement of Marks, and remains unsuccessful (or absent) in one subject is allowed Improvement of Marks in the other subject.
Fairness requires that the petitioner should have been placed better than the other candidate. In my opinion, she is being discriminated by rigid interpretation of the Rule, as made by Respondent No.3. ##S## It is reiterated that candidates who opt to improve marks should fall under one classification and cannot be subdivided into classes, merely, for selecting subjects differently. Hon'ble Supreme Court has consistently held, "that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed". Reference can be made to judgments in Government of Balochistan through Additional Chief Secretary v.
Azizullah Memon and 16 others (PLD 1993 SC 341) and LA. Sharwani and others V. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCM R 1041). The interpretation made by Respondent No.3 is not only rigid but offends the fundamental right of equal protection as guaranteed in Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973.
8. For the reasons, supra, this petition is allowed. Respondent No.3 is directed to issue Revised/Improved Marks Result Card to the petitioner of the subjects, in which she improved 'marks in Annual Intermediate Examination, 2015.