1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, seeks to call in question the judgment of the learned Chief Justice of the Peshawar High Court passed by him in a writ petition in which a Division Bench of the said High Court was equally divided on the question of inter--pretation of a notification purported to have b.-en issued by the Governor of the North-West Frontier Province on the 8th September 1972, directing the award of 5 % additional marks in each subject' to candidates who had participated in the National Service Scheme.
2. Whilst one of the learned Judges thought that this notification did not entitle, the appellant to the extended benefit sought by him, another learned Judge was of the view that if he .Was entitled to appear in the subject of Biology as an additional subject in a subsequent examination he was also entitled to such benefit. Neither of them questioned the vires of the notification in fact, they proceeded on the basis that the notification was valid, binding and of general application.
3. The circumstances in which this case came up before the High Court may be briefly stated as follows:- The appellant, who is a student seeking admission to the Khyber Medical College, filed a constitutional petition in the Peshawar High Court calling in question the order of the Chairman, Board of Intermediate and Secondary Education, Peshawar, refusing to give him certain concessional marks in the subject of Biology. The appellant, it appears, had taken the pre- Engineering F. Sc. Supplementary Examination held in 1972 with Mathematics, Physics and Chemistry as his additional subjects. He obtained an aggregate of 580 marks in this examination, but as he had also rendered national service under the National Service Scheme introduced by Ordinance XXII of 1970, he was given 5 % concessional marks on account of such service in each subject under the order of the Governor issued on the 8th September 1972, and subsequently confirmed by the Notification issued by the Chairman of the Board, on the 1st March 1973. His aggregate, therefore, came to 630. With this aggregate, he would have been entitled to admission to the Khyber Medical College, but as he had riot offered Biology as an additional subject, he could not be admitted thereto. He, therefore, offered Biology as an additional subject at the next regular Intermediate Annual Examination of 1973 and secured 94 out of 200 marks.
4. The Committee, which interviewed the candidates for admission to the Khyber Medical College, deducted the marks he had obtained in Mathematics and substituted in its place the marks he had obtained in Biology without the 5 % concessional marks. His aggregate thus came down to 609 which was found to be insufficient to qualify him for admission to the Medical College. On the other hand, if he had been given the concessional marks for the Biology paper also, he would have qualified for admission with an aggregate of 619 marks, as the last student to be admitted had an aggregate of only 611 marks.
5. His appeals to the Admitting Authorities, to the Vice-Chancellor of the Peshawar University and the Chairman of the Board of Intermediate and Secondary Education for the grant of the said concessional marks in the Biology paper also, proved unsuccessful, as they all took the view that these concessional marks were to be allowed only once in those subjects which a student was studying at the time when he proceeded for National Service. Failing to get relief from the Authorities, he came to the High Court in the writ jurisdiction.
6. It appears that after the notification of the Governor issued on the 8th of September 1972, the Board of Intermediate and Secondary Education, Peshawar, had itself issued notifications on the 18th of October 1972, the 1st of March 1973 and the 8th of August 1973, with regard to these concessional marks, and had the learned Chief Justice of the High Court examined these notifications of the Board as well, he might well have come to a different conclusion.
7. It is true that the Governor of the Province is also the Controlling Authority of the Board under section 12 of the West Pakistan Ordinance No. XIX of 1961, which set up the Board itself, but his powers, as defined in section 13 of the said Ordinance, do not extend to the making of orders with regard to the conduct of examinations. Nevertheless, under the first regulations of the Board as set out in the Schedule to the Ordinance, the Academic Committee of the Board has the power to advise the Board on all academic matters "including the general scheme of studies for an examination, the number of subjects to be included in an examination, the value of each subject in respect of marks to be assigned to it, and the conditions to be fulfilled for passing an examination and for being placed in a particular division".
8. Under the General Regulations of the Board framed in exercise of the powers given by the said Ordinance, the Board also has power to make rules consistent with the Ordinance and the First Regulations on all matters relating to examinations of the Board not provided for in the Regulations and also the general power to make rules with regard to all matters not provided for in the Ordinance or Regulations decided by the Board to be included under Rules. It would appear, therefore, that the Board certainly had the power to issue the aforementioned notifications, and if they have honoured the order of the Governor of the North-West Frontier Province by issuing similar notifications subsequent thereto, it is no longer necessary to claim the concessional marks on the basis of the order of the Governor. The notifications issued by the Board should be enough for the purpose.
9. The notifications of the Board relevant in the present case are those issued on the 1st of March 1973, and the 8th of August 1973. They are as follows :- "BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, PESHAWAR Notification It is hereby notified for the information of all concerned that the Board of Intermediate and Secondary Education, Peshawar has allowed concessional marks to the following category of candidates of the Intermediate Examination who rendered National Service :-
(1) National Service Candidates who appeared in the Intermediate Examination (Annual), 1972 and got the benefit of the concessional marks but could not pass the Examination and re-appeared in the Intermediate Examination (Supplementary), 1972 have been granted 5 % concessional marks in the re-Appearing Subjects.
(2) National Service Candidates who appeared for the first time in the intermediate (Supplementary) Examination, 1972 after having complet--ed the National Service Scheme have been granted 5 % concessional marks.
(3) Candidates who appeared and passed the Intermediate Examina. Petition, prior to their undergoing National Service, and reappeared for improvement of Division/Marks, after the successful completion of the National Service Scheme, have been granted 5 % concessional marks.
10. The National Service Candidates falling under the above categories are directed to contact the Office of the Board of Intermediate and Secondary Education, Peshawar for speedy disposal of their cases in the light of the concession granted to them.
11. (Sd.) (MOHAMMAD SALIM KHAN), M.A., LL.B.
12. Deputy Controller (Secrecy)
13. Board of Inter. & Secondary Education, Peshawar.
14. No. 307/Secrecy/BISE. 1-3-73."
15. "BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, PESHAWAR Notification It is notified for the information of all concerned that the Board of Intermediate and Secondary Education, Peshawar granted 5 %concessional marks to those candidates who undertook and successfully completed the National Service Scheme and thereafter appeared in the Intermediate Examinations. The grant of 5 % concessional marks has recently also been extended to those National Service candidates who appeared in the Intermediate (Annual) Examination, 1973, after successful completion of their training. This category of Examinees are directed to submit their original National Service certi--ficate to the Controller of Examinations (Conduct) immediately for further necessary action by this office.
16. (Prof. Sardar Mohyud-Din Khan), Chairman.
17. No. 23382/S/BISE Dated 8th August 1973."
18. It will be noticed that only the provisions of paragraph 2 of the notification of the 1st of March 1973, were attracted in the case of the present appellant and he got those benefits. He was not entitled to the benefits under para--graph 3, because, he did not reappear at any examination for the improvement of his division or marks, after the successful completion of his National Service Scheme.
19. This is an unusual case. Here the appellant wanted to improve his qualifications for admission- to the Medical College after having taken the pre-Engineering course. The provisions of the notifications of the 1st March and the 8th of August 1973, did not, in terms, apply to such a case, for, he had neither appeared to improve his division or marks nor appeared at the Intermediate Annual Examination of 1973. He only took one paper at this latter examination. On merits, therefore, it appears to us that the appellant is not entitled to the concessional marks which he claims in the subject of Biology. The notifications do not contemplate any such change-over and, therefore, make no provision for such an eventuality, although they have made provision for candidates who seek to improve their divisions or their marks by appearing in subsequent examinations. It appears to us that this is possibly an oversight on the part of the authorities and it may well be possible in such event for the case of the appellant to be dealt with by ..The Board of Intermediate and Secondary Education, Peshawar, under General Regulation No. 7 as a case of real or substantial hardship due to causes beyond the control of the student; but this will be a matter entirely in the discretion of the Chairman of the Board, as provided in the said Regulation. The Chairman will no doubt take into consideration the fact that the appellant has missed admission by only two marks and that the concession has now been extended even to those who failed in the first examination taken after the completion of national service.
20. Now, coming to the question on which leave was granted in this case, it seems to us that, so far as Clause 26 of the, letters Patent of the High Court is concerned, the practice of the Lahore High Court is clearly to the effect that, in a case in which the members of a Division Bench are equally divided, they must either deliver dissenting judgments bringing out the points of difference or formulate the points of difference for reference to a third Judge, and the third learned Judge must then decide the point or points of difference and return his opinion to the Division Bench to enable it to announce its judgment, as held in the Full Bench case of the Royal Calcutta Turf Club v. Lala Kishan Chand Manchanda (AIR 1943 Lab. 84This is also the procedure prescribed by the Lahore High Court Rules : vide rule 5, Chapter 4-H, Volume V.
21. Clause 26 of the Letters Patent constituting the High Court of Judicature at Lahore for the provinces of the Punjab and Delhi, is in these terms:- "And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore, in the exercise of the original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point --shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it."
22. It is similar in language to Clause 36 of the Letters Patent of the, Calcutta, Madras and Bombay High Courts, after their amendment in 1928, and this reads as follows:- "And we do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Fort William in Bengal, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof, appointed or constituted for such purpose, in pursuance of section one hundred and eight of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it."
23. These provisions, according to the Privy Council decision in the case of Bhaidas Shivdas v. Bai Gulab (48 1 A 181prevail over the provisions of section 98 of the Code of Civil Procedure, at any rate, in the case of a difference of opinion within the High Court itself, in any original matter or in a Letters D Patent Appeal. The High Courts in this Sub-continent have predominantly held that only the point of difference is to be referred and not the whole case, and that in such a reference the referee Judge should return the case, to be disposed of to the Division Bench with his opinion on the point of, difference; vide the observations of Sulaiman, C. J. In Mst. Akbari Begam v. Rahmat Husain (AIR 1933 All. 861with reference to Clause 27 of the Letters Patent of the Allahabad High Court, which is equivalent to Clause 26 of the Letters Patent of the Lahore High Court.
24. Dasureddi v. M. Yenkatasubbammal (AIR 1934 Mad. 436on a difference of opinion between Sundaram Chetty and Walsh, JJ., the case was referred to Pandalai, J., who observed at the end as follows:- "I think the opinion I have pronounced must go to the Bench for the appeal to be decided."
25. The appeal, then, again came up for final hearing before Sundaram Chetty and Walsh, JJ., who delivered the following judgment:- "The aforesaid question having been answered- in the affirmative we dismiss this appeal with costs."
26. The same is the view of the Patna High Court where the clause equivalent to Clause 26 of the Letters Patent is Clause 28.
27. The State of Bihar v. Ram Ballabh Das Jalan (AIR 1960 Pat. 400on a difference of opinion between Ahmed and U. N. Sinha, JJ., the matter was referred to R. K. Choudhary, J. And the latter, after quoting the terms of Clause 28 of that High Court's Letters Patent, observed:- "The above provision makes it perfectly clear that if the Judges of the, Division Bench are divided in their opinion as to the decision to be; given on any point, they shall state that point and the case shall then be heard upon that point by one or more of the other Judges. Therefore, it is only that point on which there has been the difference of opinion between the two learned Judges of the Division Bench which can be heard by me udder clause 28 of the Letters Patent. The latter part of the clause, that the point shall be decided according to F the opinion of the majority of the Judges who have heard the case including those who first heard it, also makes it perfectly clear that a point which has not been urged before the Division Bench and on which there has been no difference of opinion between them cannot be heard under the above clause of the Letters Patent by a third Judge inasmuch as in that case the decision cannot be according to the opinion of the majority of the Judges including those who first heard it."
28. Even in a criminal case, the Madras High Court, in the case of A. K. Gopalan v. The District Magistrate, Malabar (AIR 1949 Mad. 596took the same view, after holding that the reference in the case of a difference of opinion in a proceeding under section 491, Cr. P. C. Had to be under clause 36 of the Letters Patent. There, too, on a difference of opinion between Subba Rao and Mack, JJ., the point of difference was referred to Satyanarayana Rao, J., and the opinion of the latter was sent back to the original Division Bench, which, pronounced the following order:- "Pursuant to the opinion expressed by Satyanarayana Rao, J., we direct that the detenu A. K.
29. Gopalan be set at liberty forthwith."
30. Even in Calcutta, in the case of Shobharani Datta v. Santoshkumar Bakshi (AIR 1934 Cal. 633), on a difference of opinion between Lort-Williams and M. C. Ghose, JJ., on the question of an admission of a second appeal, the question was referred to Buckland, J., who held that, if the learned Judges of the Division Bench are equally divided, then they have to "deliver dissentient judgments" and refer the case under Clause 36 of the Letters Patent to a third Judge. In this case, Lord-Williams, J., as the senior Judge, passed the following order:- "As my learned brother does not agree, the matter will be referred to a third Judge, under clause 36, Letters Patent, to decide the point, whether the appeal ought to be dismissed, because no grounds for appeal exist within the meaning of section 100, Civil P. C."
31. Buckland, J., the referee Judge, answered the point' as follows:- "I agree with my learned brother, Lort- Williams J. That this appeal should be dismissed."
32. The report does not disclose as to whether this opinion was returned to the original Division Bench to record a final judgment dismissing the appeal, but this may not have been necessary, in view of the fact that the point referred to the third Judge was to decide as to whether the appeal ought to be dismissed or not. If the final order had been available, I am certain, it would have showed that according to the opinion of the majority, namely; Buckland and Lort Williams, JJ., the appeal had been dismissed.
33. So far as the Lahore High Court is concerned, the view is consistent starting from the case of M. D.
34. Puri & Sons v. Lyons Cinema, Ltd. (AIR 1933 Lah. 648where, on a difference of opinion between Addison and Agha Haider, JJ., reference was made under Clause 26 of the Letters Patent to Dalip Singh, J. It appears that the case was compromised before it came up for hearing.
35. Mst. Sardar Bibi v. Haq Nawaz Khan (AIR 1934 Lah. 371following the Madras and Patna High Courts, it was held that, under clause 26 of the Letters Patent, in all cases of difference of opinion among the Judges composing the Division Bench, the latter should state expressly the points of difference.
36. The Full Bench decision of the Lahore High Court in the case of Royal Calcutta Turf Club v. Lala Kishan Chand Manchanda fully discusses the procedure. In this case, Sale, J., expressing the opinion of the Full Court, took the view that the referee Judge did not even have the jurisdiction to decide the point of difference, for, the jurisdiction for deciding the point remained with the Division Bench seized of the case.
37. "It appears to me, therefore", the learned Judge observed, "that the jurisdiction for the decision not only of the appeal as a whole, but also of the point of difference, remains with the referring Bench; and all that the clause lays down is a method by which in the case of a difference of opinion, the difficulty is to be resolved. On this view, it would be the duty of the referee Judge to express an opinion on the point or points of difference and to return the case with his opinion to the Division Bench seized of the case which must pronounce the final judgment according to the method provided by clause 26.
38. Muhammad Akram v Ch. Muhammad Salim (PLD 1964 Lah. 490the earlier decision in the case of Mst. Sardar BIN v. Haq Nawaz Khan, was referred to, and a somewhat different view was expressed on the question as to whether the Division Bench must formulate the point of difference. In this case, the Full Court took the view that "no special form is prescribed in either of the provisions for stating the point upon which the Judges have come to differ. It may be in the form of a dissenting judgment which will include the points of difference as well as reasons given in their support or in the form of a separate order expressly stating the point or points of fact or law on which the Judges who first heard the appeal or the case have differed". It does not, however, appear that the decision in the case of the Royal Calcutta Turf Club was overruled on the second point.
39. The Karachi Bench of the West Pakistan High Court has also adopted the same procedure in cases of difference of opinion. Thus, in the case of Mir Muhammad v. District Magistrate, Nawabshah (PLD 1965 Kar. 494), on a difference of opinion between Faruqui and Jamil Hussain Rizvi, JJ., the matter was referred to Inamullah, J. (as he then was). The latter gave his opinion on the point of difference, and since by that time Rizvi, J., was no longer available at Karachi, a Division Bench was constituted in place of the original Bench to deal with the matter under Clause 26 of the Letters Patent, following the precedent laid-down in the case of Royal Calcutta Turf Club, and the final judgment was announced by one of the Judges of this newly constituted Bench.
40. From the above review of the decisions, it would appear that there is a consensus of opinion in all the High Courts. In a case of this nature, it is only the point of difference that is referred to the third Judge, and the third Judge merely resolves the difference between the Judges of the Division Bench, who continue to retain jurisdiction over the matter. The final decision in the case was to be on the basis of the majority opinion including the Judges who constituted the Division Bench.
41. Therefore, it is manifest that a referee Judge has no jurisdiction to decide anything else besides the point on which there is difference of opinion, as the whole case or appeal is not H before him. What the learned Chief Justice of the Peshawar High Court did in the present case was, therefore, wholly without jurisdiction. He decided a point, on which there was no difference of opinion at all. Neither of the Judges of the Division Bench had taken the view that there was no valid notification or order governing the grant of concessional marks to examinees.
42. On this ground, the appeal should have been allowed and we should have returned the matter to the referee Judge to answer the point or points on which-the learned Judges of the Division Bench were equally divided; but, since this would have further delayed the matter, we have, in exercise of our power to do full justice under Article 187 of the Constitution, thought it best to decide the matter on merits. As already stated, on merits, we have come to the conclusion that the appellant was not entitled to the concessional marks even under the notifications issued by the Board of Intermediate and Secondary Education, Peshawar.
43. We would, therefore, dismiss this appeal but make no order as to costs, since the necessity to come to this Court has been due entirely to the failure of the learned Judges of the High Court to take into account Clause 26 of the Letters Patent, as already indicated in the short order passed on the 27th April 1974.
44. K. B. A.