' This judgment will dispose of two connected writ petitions, being Writ Petitions No. 2389 of 1986 and No. 2390 of 1986 filed by two students of the University of the Punjab in the Pharmacy Department on the grievance that they have been illegally denied the benefit of the Regulations relating to Bachelor of Pharmacy Examination First Professional of the University Calendar (Vol. II)
1977-78, which fully enured for their benefit.
2. In Writ Petition No. 2390 of 1986 filed by Mazhar Iqbal, it is the case of the petitioner that he is passing in all the five subjects in the First Professional, B Pharmacy Supplementary Examination, 1984, held in January, 1986, except the subject of Pharma Biochemistry in which he has obtained 95 marks out of a total of 200. According to this petitioner, if the amendment in Regulation No. 2 of the aforesaid Regulations is correctly construed and applied, then, by virtue of it, the petitioner is liable to be declared successful in the examination. The petitioner's result was, however, declared to be later on and ultimately vide notification, dated 4-5-1986 the University Authorities declared him to have failed.
3. In Writ Petition No. 2389 of 1986 filed by Farooq Ahmad of the same Department, the case set up by the petitioner is that he appeared in the 1st Professional B. Pharmacy Supplementary Examination, 1984, held in January, 1986, and he passed in all the five subjects except that of Pharma Biochemistry in which he has obtained 95 marks out of a total of 200. The result of this petitioner was like the other petitioner declared to be later on and ultimately he was shown to have failed in the examination vide notification, dated 4-5-1986.
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5. Both the petitioners submitted their representations to the learned Vice-Chancellor and the Controller of Examinations, University of the Punjab, claiming that they were entitled to be declared to have passed the examination in the light of the amendment in Regulations Nos. 2 and 3 of the Regulations relating to Bachelor of Pharmacy Examination First Professional of the University Calendar (Vol. II) 1977-78, but without success.
5. The ground urged on behalf of Mazhar Iqbal petitioner is that he is short only by five marks in one subject only and as such is legally entitled to have been declared successful in terms of the amended Regulation No.
2. The plea of the other writ petitioner Farooq Ahmad proceeds on similar basis.
6. On behalf of the respondent-University, their learned Legal Adviser Ch. Muhammad Farooq argued that under the amended Regulation which governed the matter the number of marks by which a candidate was short shall not be physically added while giving him the concession of five marks in case of failure in one subject (theory and practical) or in respect of a candidate who failed in more than one subject by a margin which could be made up by distribution of five marks over the subject/papers in which he failed. According to him, since the five grace marks were not to be physically added, therefore, the two petitioners could not make up the requirement of 50% in theory and practical examination separately and in each subject.
7. I have given the matter my careful consideration. It would be advantageous at the very outset to take note of the Regulation' as it existed before and after its amendment in the year 1977-78. Both of them are reproduced for the purpose of ready reference and appreciation:-- Existing Regulation 2.The minimum number of marks required to pass this examination shall be 45% in each of the theory papers 50% in each of ..The practicals and 50% in the aggregate.
' Candidates who have obtained 80 per cent. Of the marks in any subject shall be deemed to have 'obtained distinction in that subject, provided that no candidate who does not pass in all subjects of the examination at one time shall be declared to have passed with distinction in any subject.
Provided further that a candidate who fails in any one of the theory or practical papers or in the aggregate by five marks or less shall be deemed to have passed the examination.
Amended Regulation ' The minimum number of marks required to pass this examination shall be 50% in theory and practical examination separately and in each subject.
' Candidates who have obtained 80 per cent of the marks in any subject shall be deemed to have obtained distinction in that subject, provided that no candidate who does not pass in all subjects of the examination at one time shall be declared to have passed with distinction in any subject.
Provided further that a candidate shall be deemed to have passed if he (a) fails in one subject (theory and practical) by a margin of 5 marks, (b) fails in more than one subject by a margin which can be made up by distribution of five mark over the subject/papers in which he fails when he takes the examination either in all the subjects at one time, or having appeared and failed in a part of the examination, reappears in the subjects in which he had not passed. Provided further that he will be granted this concession -only once in this examination. The number of marks by which he is short shall not, however, be physically added.
A careful examination of these provisions would show that under the unamended Regulation as it existed prior to 1977-78, there were three requirements in respect of marks required to pass the First Professional Examination in B. Pharmacy, namely, (i) 45% in each of the theory papers, (ii) 50% in each of the practicals, and (iii) 50% in the aggregate. In contra-distinction to this, the main provision of amended Regulation No.2 under reference carries its own scheme by providing that the minimum number of marks required to pass this examination shall be 50% in theory and practical examination separately and in each subject. However, the proviso to this main clause lays down that a candidate shall be deemed to have passed if he (a) fails in one subject (theory and practical) by -a margin of five marks, and (b) fails in more than one subject by a margin which can be made up by distribution of five marks over the subject/papers in which he fails when he takes the examination. At the end, however, it is mentioned that the number of marks by which a candidate is short shall, not however, be physically added.
8. The main burden of the argument of the learned Legal Adviser for the Punjab University Ch. Muhammad Farooq was that the five concessional marks could be given to make up the deficiency in case of failure in one subject (theory and practical) but since these marks were not to be physically added, therefore, the second condition of 50% marks in each subject would not be fulfilled and thus the candidate could not be declared to have passed. According to him, this amounted to the same thing as obtaining 50% marks in the aggregate in the examination.
9. A comparison of the language employed by the framers of the Regulation prior to its amendment and after amendment clearly brings out that the requirement of 50% in the aggregate has been done away with through a conscious omission. There was a further change brought about by providing that instead of 45% marks in each of the theory papers and- 50% marks in each of the practicals, a candidate must obtain the minimum marks for passing the examination as 50% in theory and practical examination separately and in each subject. The fate of these cases turns on the true interpretation of the proviso referred to above. This proviso has introduced a deeming provision which, in other words, is designed to bring about the desired result through a fictionof law though in practical reality it may not exist.
10. It would be relevant here to refer to the true scope and function of a proviso whenever occurring in a statute or instrument having a satutory force. Reference in this behalf may be made to the case of East and West Steamship Co. Pakistan PLD 1958 SC 41 wherein it has been elucidated that a proviso is to be regarded as something which excepts a particulars case from a general principle. The effect of n proviso is to except something out of the preteding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it Moreover, the words of a proviso are to be construed strictly and confined to the special case which its words enact. It would also be advantageous to refer to the law laid down in the case of Prem Nath v . Kamir Mondal PLD 1965 SC 434 wherein the Supreme Court of Pakistan speaking through Hamoodur Rehman, J. Was pleased to observe that a proviso as is generally accepted, is in the nature of an exception to the substantive provision to which it has been appended.
11. Now, going by the true scope of the proviso it must be held that but for the proviso under reference, the case would have fallen under the substantive part of the Regulation. Once the case of the two petitioners is free from the rigours of the substantive provision, then the benefit of the proviso must ungrudgingly be extended to them. The proviso lays down that a candidate shall be deemed to have passed in the given situations which were fulfilled in the petitioners' case. So, it is through a fiction of law that a candidate covered by the proviso would be declared to have passed the examination. A deeming clause in a statute or a Regulation is in the nature of a. Requirement that a certain state of affairs must be imagined for its proper construction and application. The desired results are thus achieved through a legal fiction and a fortiori practical realities would be lacking.
12. Looking at the two cases under examination in the light of the true scope of the Regulation, it emerges clear that the benefit of five marks can be given in two cases; (i) where a candidate fails in one subject (theory and practical) by a margin of five marks; and (ii) fails in more than one subject by a margin which can be made up by distribution of five marks over the subject/papers in which he fails. Each of the two writ petitioners is being given fictional benefit of five marks in the subject of Pharma Biochemistry to render them liable to be declared to have passed the examination.
13. The learned Legal Adviser for the Punjab University laid emphasis on the provision that the number of marks by which a candidate is short shall, however, not be physically added as governing the entire amended Regulation. With due deference, I am, unable to agree with this interpretation. It seems to me that the true purpose of this provision was that while a person was being declared to have passed by virtue of the concession of marks being given to the cases covered by G eventualities (a) and (b) of the first proviso to the Regulation, the other students passing the same examination should not be adversely affected by upgrading the concessional candidates- in merit position vis-a-vis other candidates. Therefore, the learned Legal Adviser of the University is correct in saying that these marks are not to be physically added. But this, however, does not mean that the benefit of the proviso which is based on fictional concept of law should stand completely defeated. It has already been observed above that the requirement of 50% in the aggregate had been done away with while amending the Regulation. Even under the unamended Regulation the legal position does not appear to favour the learned counsel for the respondents, because the self-speaking second proviso thereto read. "Provided further that a candidate who fails in any one of the theory or practical papers or in the aggregate by five marks or less shall be deemed to have passed the examination." It will be appreciated that under the original Regulation five concessional marks were to be fictionally added for the purposes of aggregate or individual papers. The position is no different after the amendment of Regulation No.2 in material respect. The expression that number of marks by which a candidate is short are not to be physically added appears to have been used as a measure of abundant caution as the same result otherwise flows from the legal effect of the deeming provision. The argument of the learned counsel for the respondents, therefore, does not merit to succeed. If the argument of the learned Legal Adviser was to be accepted then it would mean that the framers of the Regulation intended to give a benefit with one hand and take it away with the other. Such an intention is not to be attributed to the framers of a Regulation or a law.
14. There are two essential ingredients of the substantive clause of the amended Regulation, that is, that a student shall obtain 50% marks (i) in theory and practical examination separately, and (ii) in each subject. The proviso under reference when given its due effect will enure for the benefit of the petitioners. They are to be deemed to have passed the examination by failing in one subject (theory and practical) of Pharma Bio- chemistry by a margin of five marks. This result flows from a plain reading of the amended provision. The other conditions or qualifications spelt out in Regulation No.2 are not in dispute and, therefore, they are not being discussed in this judgment.
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16. I am, therefore, inclined to hold that the petitioners in each case are entitled to the benefit of the deeming provisions of the first proviso to the amended Regulation No.2 relating to Bachelor of Pharmacy Examination First Professional of the University Calendar (Vol. II) 1977-78 and thus, would be deemed to have passed the examination through fictional/notional grant of five marks in the subject of Pharma Bio- chemistry. The writ petitions are accordingly accepted and the impugned notifications dated 4-5-1986 are declared to be without lawful authority and of no legal effect. The respondents are directed to declare the petitioners as having passed the First Professional B.
Pharmacy Supplementary Examination, 1984 in which they were illegally declared to have failed through misapplication and misinterpretation of the Regulations. However, in the circumstances of the case, there shall 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.