The captioned writ petition has been addressed under Article 44 of the Azad Jammu & Kashmir Interim Constitution, 1974.
2. Precise facts culminating into filing of the instant writ petition are that petitioner is Headmistress B-18, of Education Department, who was initially inducted as Primary Teachress in year, 1984, promoted as Junior Teachress on 01.06.1984, as Senior Teachress on 23.02.1986, and as Selection Grade SST on 30.11.1987. It is averred that petitioner passed M.A. examination in subject of Islamic Studies in Session, 1992, with 2nd Division and in this regard, result card was also issued by the University-respondent. It is claimed that petitioner submitted the aforesaid result card to competent authority , who was promoted on officiating basis as Subject Specialist B-17, vide order dated 26.03.1996. She was later on, confirmed in grade B-17, as per recommendation of respective Selection Board vide Govt notification dated 25.07.2002, with retrospective effect from 26.03.1996. The petitioner was also promoted in grade B-18 vide Govt. notification dated 28.04.2009. It is alleged that respondents did not issue degree to petitioner according to the said result card, hence, she applied for the same, however , respondents issued degree by deducting 04 grace marks in 3rd Division, whereupon, petitioner submitted an application for issuance of correct degree as per Marks Sheet on 31.08.2010, which was turned down by University authorities, vide the impugned order dated 08.03.201 1, against facts and law , hence, the instant constitution petition.
3. The writ petition has been resisted by respondents through written statement, wherein, it is pleaded that petitioner has not come to the Court with clean hands, hence, she is not entitled to any relief. It is further pleaded that petitioner obtained 441 marks out of 1000 in M.A Islamiat and by awarding 04 grace marks, she was declared successful in 2nd Division. It is further stated that petitioner after obtaining degree remained mum for pretty long period spreading over 18 years, hence, the instant writ petition is hit by doctrine of lathes. It is submitted that petitioner relied upon result card, wherein, it is categorically mentioned that errors and omissions can be corrected, therefore, writ petition is not maintainable.
4. Mirza Kamran Baig, the learned counsel for petitioner , has filed written arguments, wherein, it is submitted that as per result card dated 30.08.1992, petitioner was declared passed in 2nd Division, however , at Serial No, 12, of award list cutting was made on 22.01.1994, after laps of two years period, therefore, revisiting award list which was exclusive domain of examiner , was not justified. The learned counsel contended that on the basis of the aforesaid result card, petitioner was promoted on officiating basis as Subject Specialist B-17, vide order dated 26.03.1996, who was later on, promoted on regular basis in grade B-17, vide Govt. notification dated 25.07.2002, and then in grade B-18, on 28.04.2009. The learned counsel contended that University-respondent did not issue degree to petitioner according to the said result card, however , respondents got no authority under law to change award list after lapse of years or make erasing in entries. He maintained that petitioner subm itted an application for issuance of correct degree on 31.08.2010, however , the same was turned down vide the impugned order dated 08.03.201 1, against facts and law, hence, submitted for acceptance of writ petition. The learned counsel in support of his contentions placed reliance on the following case law:--
(i) An unreported judgments of the Apex Court (Civil Appeal No, 20/2006), titled AJ&K University and others vs. Naureen Talat and another , decided on 15.11.2006 and (Civil Review Petition No, 05/2006), titled Azad Jammu and Kashmir University and others vs. Naureen T alat and another , decided on 18.06.2008.
(ii) An unreported judgment of this Court in Writ Petition No, 57/2007, titled Noor -ul-Ain vs. Azad Jammu and Kashmir University and others , decided on 23.1 1.2007.
5. Raja Amjad Ali Khan, the learned counsel for respondents, has also filed written arguments, wherein, it is submitted that petitioner obtained 441 marks out of 1000, however , she was awarded 04 grace marks to be declared as successful. The learned counsel pressed into service that 2nd Division starts from 45% marks and petitioner required 450 marks out of 1000 to obtain 2nd Division, however , she obtained 441 marks out of 1000, and if for the sake of arguments, 04 grace marks were included in her obtained marks, even then, her marks come to 44.5%, therefore, she is not entitled to any relief. The learned counsel contended that petitioner relied upon result card, wherein, it is categorically mentioned that "errors and omissions excepted" which error was rightly corrected in degree, hence, submitted for dismissal of writ petition.
6. I have perused the contents of writ petition and examined the appended documents made available with utmost care.
7. A contemplate perusal of file reveals that petitioner passed M.A. in subject of Islamic studies in 1st Annual Examination 1990, and in this regard, result card was issued in her favour by the University-respondent under Roll No, 221 dated 30.08.1992, which speaks as follows:-- "The University of Azad Jammu & Kashmir RESUL T CARD FOR SUCCESSFUL CANDIDA TES M.A. Part II (Final) I/II Annual Examination, 1990 IN THE SUBJECT OF ISLAMIC STUDIES Roll No, 221 Regd. No, 85-AKU-106 Name of the candidate Zahoora Begum He/She is hereby informed that he/she has PASSED the examination held in Feb. 1992 , in 2nd Division by securing 445/1000 marks.
The marks obtained by him/her in various papers are given below:- Paper Subject/Description Marks Obtained I Comparative Study of Religious 34/100 II Islam & Modern Political & Social Thought 45/100 III Islam & Modern Economic Thought & Movements 44/100 IV i. Islam & Science 41/100 ii. Islam & Philosophy /100 iii. The Origin and Development of Al-Kalam /100 V. (a) i. Influence of Islam on the W orld Civilization & the Achievements of Muslims.34/75 ii. The W orld of Islam, Resources and Problems. /75 iii. Islamic Ethics and Tasawwuf /75 iv. Viva V oce 12/75 OR Thesis /100 Total 210/500 Total of M.A. Islamic Studies Part-I Exam 231/500 Grand Total 441+4/1000 Note: Errors and omissions excepted, this result card is issued as a notice only. An entry appearing in it does not in itself confer any right or privilege independently for the grant of a proper Certificate/Degree which will be issued under the Regulations in due course.
Muzaf farabad -Sd- The 30 Aug 1992 Dy . CONTROLLER OF EXAMINA TIONS"
The petitioner admittedly on the basis of the aforesaid result card, was promoted on officiating basis as Subject Specialist B-17, vide order dated 26.03.1996, who was confirmed as per recommendation of Selection Board as such vide Govt. notification dated 25.07.2002. She was lastly promoted in grade B-18, vide Govt. notification dated 28.04.2009. The University-respondent did not issue degree to her according to the said result card, whereupon, she applied for the same, however , respondents issued degree by deducting 04 grace marks in 3rd Division. The petitioner submitted an application for issuance of correct degree on 31.08.2010, which was turned down by University-respondent vide the impugned order dated 08.03.201 1. As per clause 21, of Chapter-22, Regulations for master's degree examination in various subjects, approved by the Syndicate in its 5th meeting held on 11th September , 1988, 5 grace marks could be awarded to a successful candidate to place him/her in higher Division, which speaks as follows: "21. The candidates who qualify both the previous and final examinations in accordance with the prescribed Regulations and gain 60% or more of the total number of marks assigned to the subject shall be placed in the First Class, those securing less than 60% but not less than 45% shall be placed in the Second Class and all others in the Third Class.
Provided further that upto 5 grace marks may be awarded to a successful candidate to place him/her in higher Division. This concession shall only be granted if a candidate passes the examination without availing concession of 3 grace marks as indicated above."
A bare reading of the aforesaid Regulation makes it abundantly clear that 5 grace marks could be awarded to a successful candidate to place him/her in higher Division. A perusal of result card reveals that petitioner obtained 441 marks out of 1000, and by awarding 04 grace marks, she was granted DMC in 2nd Division. No any reason was brought on record by University authorities that why grace marks granted to petitioner were recalled. It is well settled principle of law that due to act of authority an individual cannot suffer. An identical proposition came under consideration before the Apex Court in an unreported case titled "AJ&K University and others vs. Naureen Talat and another , (Civil Appeal No, 20/2006), decided on 15.1 1.2006. The relevant extract is reproduced as under: "After considering the facts and case law referred to above we are of the view that all functionaries of the State are supposed to work strictly under law and simply writing in some Statute that errors and omissions are expected, cannot be given any weight without estimating the loss or damage caused to the party . May be that there was no mala-fide on the part of the appellants, the bona-fide of the respondent has to be seriously noted. The result card issued to the respondent is an official respondent document, which unless serious ly rebutted, has presumption of truth. Mere assertion that the numbers inserted in the result card were 29, which have wrongly been tabulated as 49, cannot be accepted. Be that as it may, it was a mistake by some clerk of the University and if at all it was, the same could be corrected within reasonable time by the University authorities and conveyed to the respondent so that she could appear in that paper as well......................................"
A similar proposition came under consideration before the Hon'ble Supreme Court in case titled "Nasreen Akhtar and 03 others vs. Sameena Bilquees and 03 others, " (2006 SCR 312), wherein, it was opined as follows: "....Even otherwise, for the sake of argument, if it is accepted that the advertisement dated 25.07.2006, was issued without lawful authority , even then that was the fault of the department, not the appellants. No person can be penalized for the fault of the department."
A similar view was also expressed by the Lahore High Court, Lahore, in case titled "Ahmed Latif Qureshi vs. Controller of Examination, Board of Intermediate and Secondary Education, Lahore," (PLD 1994 (Lah.) 3), wherein, it was observed 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 some 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 .
8. The functionaries of the State are supposed to work strictly under law and simply writing in some Statue that errors and omissions are expected, canno t be given any weight without estimating the loss or damage caused to a party . The result card issued to petitioner is an official document and the same has presumption of truth, and could he corrected within a reasonable time by the University-respondent. The petitioner in case of 3rd divisioner could improve her division, if intimated within short span of period, therefore, she cannot suffer due to fault of authority . In the case in hand, respondents failed to issue degree to petitioner till 26.08.2010, without showing any lawful" justification, hence, petitioner is entitled to equitable relief of writ; jurisdiction.
9. The crux of above discussion is that by accepting the instant writ petition, the impugned order dated 08.03.201 1, is hereby quashed as without lawful authority , hence, having no legal effect. The Respondents Nos, 1 to 4, are hereby directed to issue correct degree in C. favour of petitioner forthwith as per result card under Roll No, 221, dated 30.08.1992. The cost shall follow the eventuality .