By filing this petition, the petitioner has made following supplications:- ....that by accepting this writ petition, the respondents may kindly be directed to issue improved marks result card to the petitioner by including improved marks of Physics subject in Annual Interme diate Examination, 2019 in the interest of justice ."
2. Pithy facts of the instant writ petition highlighted in the petition and at bar are that the petitioner appeared in F.Sc. Part-I and Part-II Annual Examination held in the years 2017 & 2018 respectively, conducted by respondent- Board of Intermediate and Secondary Education, Bahawalpur (the Board) and passed the same. In order to improve his marks, he again applied to appear in two subjects in Annual Examination, 2019 as contemplated under Rule 19 of Intermediate Examination Rules of the Board. However, he appeared only in one subject and absented himself in the other one (Urdu). In spite of the fact that in paper of Physics he secured higher marks than in previous examination, his result card was not issued by the respondents on the ground that aforementioned Rule stood substituted on 23.04.2018 with following one:- "4. Lastly an option with regard to improve the marks in subject but "less than complete" may also be offered and on declaration of result, the aggregate result of individual subject will be compared with the previous one and higher marks/grade will be awarded to the candidate. If a candidate remains absent in one or more subjects of Part-I or Part-II or Part-I & II (Composite), his result will be declared as "Marks Not Improved."
Reason advanced by the respondent-Board for withholding result of the petitioner was that case of the petitioner was hit by the above quoted substituted Rule which has become operational w.e.f. Annual Examination 2019 onward.
3. Learned counsel for the petitioner has vehemently contended that the petitioner got admission in F.Sc. in year 2016 when Rule 19 dated 11.12.2014 was in field, as such his case squarely falls within the ambits of said Rule and the petitioner has to be dealt with as per mandate of said provision of law. Further submits that any amendment subsequently inserted in rules cannot be made to apply retrospectively , that too adverse to the interest of the petitioner which had already occurred in his favour on the basis of earlier rules. To lend support to his contention learned counsel relies on the dictum laid down in case 'Faryal Noureen v. Board of Intermediate and Secondary Education, Sargodha and others ' (2016 MLD 438 Lahore ), 'Mst. Asia Iqbal v. Board of Intermediate and Secondary Education, Bahawalpur through Chairman and another ' (1995 CLC 341 Lahore ) and 'Saba Gul Qureshi v. Board of Intermediate and Secondary Education Lahore through Chairman and another ' (1994 CLC 1073 Lahore ).
4. On the other hand learned Law Officer appearing for respondents has opposed this petition and maintained that substituted rule, quoted above, was applicable from Annual Examination 2019 which was was implemented/executed in letter and spirit, without any discrimination by respondent-Board.
5. Contentions heard.
6. Admittedly, the petitioner got admission in F.Sc. with respondent-Board in the year 2016 when Marks Improvement Rules-2014 were applicable. This being so, the petitioner was to be governed by the said Rules and not by any subsequently amended/substituted Rules in respect of availing chance for improving the result.
Steering thoughts in this respect have been gathered from the principle laid down by the Apex Court of Pakistan in case 'Water and Power Development Authority, Lahore through Chairman and others v. Haji Abdul Aziz and others' (2012 PLC (C.S.) 1285) wherein it has held that if a right was created in favour of employee under the old rule, it could not be taken away, as Rule of Interpretation is that any amendment which deprives a person of his right has to be construed prospectively. It was further ruled that an act of subordinate legislature authority cannot be applied retrospectively unless law confers such power to do so. In case 'Yousaf Bashir Toor v. The Chairman, Board of Intermediate and Secondary Education, Hyderabad and another' (1987 MLD 297), learned Division Bench of Sindh High Court has laid down following principle:- "In this view of the matter , we declare that the notification of 12.10.1985 did not affect the right of the petitioner to appear in an examination for improvement of his division and the petitioner had the right at the relevant time according to the rules to appear in the examination, therefore, the only direction necessary at this stage is that the respondents Nos.1 and 2 should declare the result of the petitioner for the examination in which he has appeared under the orders of this Court, dated 27.03.1986 and those examinations were held in May , 1986. "
Similar view has been taken in cases 'Exon Corporation and Esso Inc. v. Syed Nisar Ahmed Jafry and another '
(1994 SCMR 918), 'Sher Muhammad Mazari v. Higher Education Commission of Pakistan through Regional Center and another ' (2017 YLR Note 368 Lahore ), 'Sydia Uzma Bukhari v. Board of Intermediate and Secondary Education Faisalabad through Chairman and others ' (2001 YLR 2770 Lahore ) and 'Muhammad Iqbal Rafi v. The Province of Punjab and others ' (1985 MLD 956 Lahore ).
7. The version of the respondent-Board is violative of above noticed settled law. Retrospective application of amended rule in the case of the petitioner is not fair, reasonable or in accordance with sound principles. It is established law that a public duty cannot be exercised arbitrarily , whimsically or in disregard of law of land and principles of natural justice. Under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner is entitled to be dealt with in accordance with law and not otherwise. As such the instant writ petition is allowed and respondent-Board is directed to issue result card of improved examination of F.Sc. in favour of the petitioner forthwith as per Rules of 2014 on payment of requisite fee, if any .