' This writ petition has been instituted by the petitioner to challenge the validity and vires of the order of the authorities of Board of Intermediate and Secondary Education, Lahore whereby he is being asked either to accept the award list in respect of three missing papers or to appear afresh in three subjects.
2. The facts in brief are that the petitioner appeared in F.Sc. (Pre-Medical) Intermediate (Spring)
Exam. 1982 under Roll No, 3657. The petitioner claims to be a brilliant student. His case is that the result was declared showing that he obtained 483 marks. He could not believe that he will be placed so low. Consequently; the petitioner under the rules of Board applied by depositing Rs, 50 for inspection of his answer books. In the course of inspection, answer books in the subjects of English Paper 'A', Urdu Paper 'A' and Physics Paper 'A' were not forthcoming.
3. Thereafter, on 20th November, 1982 he represented to the Chairman that three answer books were yet to be traced and shown to him. However, on 27th December, 1982 he gave a formal representation stating that he had applied for re-checking of his eight answer books ; that his application, dated 20th November, 1982 still remained unanswered and that he was being verbally informed that the three answer books are untraceable having presumably been lost. He expressed the apprehension that the answer books had been changed by somebody thereby insinuating that he had obtained very high marks. He accordingly asked for conveying of the decision in that behalf.
4. This was replied to by the Board's letter, dated 18th January, 1983 in which it was stated that since the petitioner's scripts of English Paper A, Urdu Paper A and Physics Paper A could not be located despite best efforts, he was therefore, allowed either to accept the marks of the said papers already received by the Board's Office vide counter-foils and through Head Examiners in the shape of award lists or to appear in these subjects in the ensuing examination in the light of the Board's decision dated 10/12th December, 1981. The petitioner is not satisfied with this course adopted and the decision taken by the Board and hence has approached this Court for relief in its Constitutional jurisdiction.
5. The petitioner has accordingly -prayed that the order of the respondents as conveyed through memorandum, dated 18th January, 1983 may be declared to be of no legal effect and that a further direction be issued to the respondent Board to grant to the petitioner benefit of rule 5.13 of the Calendar of the Board of Intermediate and Secondary Education and allocate for the missing papers average of the marks obtained by the petitioner in other papers.
6. The learned counsel appearing in support of this writ petition took up the stand that the rule which properly governed the case of the petitioner was rule 5.13 as it stood at the relevant times.
According to him, the scope of the said rule was that in case of a candidate whose paper or papers had been lost on being received by the Superintendent of Examination or one of his assistants then if his result in other subjects/ papers entitled him to be declared successful in the examination with or without addition of marks in the missing paper, he may be given the option either to appear in the missing paper and the marks obtained by him in that paper would be duly entered in the result sheet and his result declared accordingly or to accept the marks for missing papers calculated on the basis of average of marks obtained in other papers by him. The petitioner wishes to opt for the second choice for the grant of marks on the basis of average of marks obtained in other papers by him. The learned counsel in support of his contention that aforementioned rule governed the case, has relied on the circumstance that Controller of Examination's made his recommendation in terms of rule 5.13 as is being claimed by the learned counsel for the petitioner. The Controller had recommended:-- "Under the circumstances, the candidate may be asked whether he is willing to accept the average marks in the missing papers, if otherwise eligible, or may appear in the missing papers in the ensuing Intermediate Examination."
' However, the matter was put up to the Chairman of the Board who on 16th January, 1983 passed an order in terms that since the award lists and counter-foils are available, the candidate should accept the award and if he is not willing to accept it, let him appear in the subjects concerned. In other words, the sum and substance of his order was that it is open to a candidate either to accept the award already given or to re-appear in these subjects.
' It is further the case of the petitioner that in case of any dispute as to whether the candidate's paper was duly received or not, the finding of the Controller of Examination was final and since in the petitioner's case the Controller of Examination had recommended the treatment of his case in accordance with second option, therefore, the contrary decision of the Board must be struck down.
7. The controversy in the above circumstances boils down to the issue whether the case of the petitioner is governed by rule 5.13 of the Calendar of the Board of Intermediate and Secondary Education or as claimed by the respondent Board is covered by the newly-added rule introduced in the Calendar on 10th December, 1981.
8. I have considered the arguments and carefully examined both the rules. On a fair reading of the two rules, it becomes apparent that they relate to different situations at different stages and thus treatment under either rule is also distinct. On a plain reading of rule 5.13, it appears clear that this would stand attracted to those cases where a candidate's paper is lost after being received by the Superintendent of Examination or by one of his assistants. It follows that these would be cases wherein no evaluation could be made and no award given by the examiners by virtue of the loss of paper at a prior stage. The rest of the rule deals with consequences of such a happening. In the present case, the petitioner appeared in the Intermedate (Spring) Examination, 1982 and got 483 marks. After the declaration of results, the petitioner applied for rechecking of his six answer books.
' Now, the newly-added rule introduced on 10th December, 1981 provides that if a candidate on paying the prescribed fee applies for rechecking of his any answer book and such copy/answer book is missing after award of marks, then offer would be made to the candidate to accept the marks given in the award list or secure permission to re-appear in the subject or subjects, as the case may be. On a comparison of the two provisions, it emerges clear that each one of them is meant to take care of a different situation contemplated by the rules. Coming to the facts of the present case, it would be seen that this does not involve loss of papers on receipt by the Superintendent of Examination or by his assistant. The loss of papers in the present case was occasioned after the papers were examined by the examiners and awards given. In such a situation, therefore, dealing with the case of the petitioner in terms of applicable rules does not render the impugned order as void or without jurisdiction.
9. The contention of the petitioner that his case ought to be dealt with under rule 5.13, has no merit for the reason that his papers were not lost by the Superintendent of Examination. They were lost after the papers were evaluated by the examiners and result of the petitioner compiled and completed.
10. The argument of the learned counsel based on the view of the Controller of Examination is of little avail. The rule has vested io the Controller the power to conclusively decide whether a candidate's papers were duly received by the Superintendent of Examination or not. No such dispute properly arose on the admitted facts of the present case. The papers in the present case were lost after allocation of marks had been made by the examiners.
11. On a fair interpretation of the newly-added rule, it seems obvious that the choices are meant to be given to a student whose case falls within the purview of this rule. The first is that he can be given option to accept the award list as it is recorded by the examiners or to re-appear in the subject. The rule is framed in Urdu and it speaks of 'Mazmoon.'
12. I may observe at this stage that during the hearing an offer was made by the learned counsel for the Board to the present petitioner to the effect that he could re-appear in the three papers which are missing and not the whole subject and that he would not be made to suffer on that account by deduction of his marks for the purpose of admission to a Medical College. This offer has not been accepted by the petitioner.
13. The petitioner has not been able to establish any element of mala fides on the part of the Board of Secondary Education. The impugned letter, dated 18th January, 1983 is found to be in conformity with the rules and does not suffer from any legal infirmity so as to call for interference in exercise of Constitutional jurisdiction.
14. I do not wish to advert to the pleas from either side based on petitioner's academic brilliance or otherwise. This is not a matter of argument but rests on performance best judged by the examiners. The plea of the Board that I should draw adverse inference against the petitioner because he was caught cheating in the previous examination and debarred from examination on the basis of confession of the petitioner is also not relevant for the purposes of the present controversy.
15. In the light of the discussion above, I see no merit in this writ petition and the same is accordingly dismissed. There shall, however, be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.