I had allowed this writ petition by the following short order passed on 20--8-1989: "For the reasons to be separately recorded later, this petition is allowed with no order as to costs. In paper I-Written (Pharmaceutical Chemistry --II Physical), which was lost, the petitioner is entitled to the award of average marks obtained by him in other papers in accordance with the proviso to Regulation 6 of the Punjab University Calendar, Volume, I, relating to the conduct of examinations."
This order contains the detailed reasons and be read as part of the order dated 20-8-1989.
2. The petitioner had appeared in the Second Annual Examination of Second Professional B.
Pharmacy held in January, 1989, under Roll No.2037. The petitioner's result was declared on 23-4- 1989 and according to the Result Card, he obtained the following marks in different papers:-- 41)Pharmaceutical Chemistry 11 (Physical)103/200 (2)Pharmaceutics 11 (Galenical Pharmacy and preparations)111/200 3)Pharmacognosy I113/200 (4)Pharmacology I,116/200 (5)Islamiyat/Ethics and Pakistan Studies53/200 However, the petitioner was declared failed in paper 1 because he was shown to have obtained 40/100 marks in the written paper and 63/100 in the practical. The petitioner was not satisfied with the marking in the written papers and applied for re-checking the said paper. On 20-7-1989, the petitioner was intimated by the Controller of Examinations that script relating to paper 1 Pharmaceutical Chemistry 11 (Physical) was not traceable. In the meanwhile, the petitioner had obtained admission in the third- Professional of B-Pharmacy and had been regularly attending his classes.
3. The learned counsel for the petitioner urged that the petitioner had obtained above 50 per cent marks in the other papers and was entitled to be given at least 56 per cent marks in the paper which had been lost, in accordance with the proviso under Regulation No. 6 of the Punjab University Calendar Volume-I. On the other hand, the learned counsel for the respondents strenuously urged that the petitioner was not entitled to the benefit of the proviso to Regulation 6 of the Calendar because there was reliable material in the shape of the result sheet and the award list to prove that the petitioner had obtained only 40 marks in the written paper of the relevant subject. He further submitted that over a number of years, the University Authorities have been construing the proviso to mean that in case of loss of an answer book, the candidate was entitled to the grant of average marks obtained by him in other papers if there was no other reliable material to show the marks actually awarded to him in the paper. He urged that the University authorities have been following the practice of not allowing the benefit of average marks in similar cases where other reliable material was available to prove the marks actually obtained by a candidate. Hence the said practice be not disturbed. He placed reliance on Nazir Ahmad v. Pakistan and 11 others PLD 1970 SC 453.
4. Before discussing the merits of the respective contentions of the learned counsel for the parties, the amended Regulation 6 is reproduced below for ready reference:-- "6. If a candidate's paper is lost after having been received by the Superintendent of the Examination or by one of his assistants, and if he passes in all other subjects of the examination, he may be required to appear in that one paper which is lost on a date fixed by the Controller of Examinations, and if he obtains pass marks he shall be deemed to have passed the examination. In case of dispute as to whether a candidate's paper was duly received or not, the finding of the Controller of Examinations, subject to the approval of the Vice-Chancellor, shall be final: Provided that if an answer books received by an Examiner is/are lost before or after evaluation, average of the marks obtained by the candidate in others in which he has appeared shall be awarded to him in the said paper. The candidate shall however, have the option either to avail the average of the marks or to reappear in the paper."
5. A bare reading of the amended Regulation 6 makes it clear that .n case the answer book of a candidate is lost after its receipt by an examiner, then a candidate is entitled as of right to be awarded the average marks obtained by him in other papers. It is not for the University authorities to deny him the benefit of the average marks. However, the candidate has been given the option either to avail of the average marks or to re-appear in the paper. On a proper construction of the proviso under the amended Regulation 6, there is absolutely no, scope to fall back upon other material to determine the marks obtained by a candidate in a paper which had been lost after receipt by the examiner. It is simply not understandable as to how the University authorities have been interpreting the proviso differently and denying its benefit to the candidates over a number of years in the past. I am not prepared to accept the contention raised by the learned counsel for the respondents that the construction placed by the University authorities over the amended regulation No.6 be allowed to be followed. A Court of law cannot allow a patent injustice to be perpetuated. Had the construction I placed on the regulation by the respondents been reasonable, then the contention raised by the learned counsel for the respondents would have carried some weight. However, a patently wrong, rather absurd construction cannot be allowed to be placed on the Regulation by the University authorities.
6. Nazir Ahmad's case relied upon by the learned counsel for the respondents pertains to the matter of seniority in the cadre of Engineering Supervisors. According to the departmental rules, there were two categories of candidates for admission to the Engineering Supervisors Examinations, namely, (1) departmental candidates, and (2) outside candidates which meant candidates other than the departmental candidates. Seniority in the cadre was to be determined according to Rule 28 of the Rules, which runs as follows:-- "Rule 28. Seniority --For the purpose of determining the relative seniority in the cadre of Engineering Supervisors of those appointed at groups viz., departmental candidates and other members of the staff of the department who were selected as outside candidates and (2) other outside candidates. Seniority in each group will be determined according to the total marks obtained by each at the final examination held on completion of training at the Departmental Training Class. But all the candidates selected from Group 1 will be given seniority over those in Group 2 irrespective of the number of marks obtained in the examination. All the Engineering Supervisors appointed after one examination will rank senior to those appointed after the later examination."
The department had treated the appellant from the very beginning of his appointment in the cadre as an "outside departmental candidate" who had been getting his promotion on the same basis.
The appellant in the said case tried to urge that his earlier promotion had wrongly proceeded on the assumption that he was an "outside departmental candidate". In writ petition, the High Court came to the conclusion that the petitioner could not be considered as a departmental outside candidate. However, this conclusion was held to be erroneous by the Supreme Court. It was held by the Supreme Court that on 9-2-1944, the appellant was a departmental outside candidate. Hence, the appellant's seniority under the Rules was to be determined on the total number of marks obtained by him after the completion of the training period. It was further held that it was no fault of the appellant that the training was delayed on account of his initial rejection in the medical test, and as a result of which the respondents got their training first and were appointed before him. The construction "appointed at one time" was always construed by the department as 'selected at one time" for training and was being followed consistently over a number of years. The Supreme Court was pleased to observe that the departmental practice had followed the right course in the implementation of the relevant rules. However, in the peculiar circumstances of the said case, it was further observed that even if the practice was wrong, it would be extremely unfair to make a departure after the lapse of so many years because it would disturb rights that had already been settled by a long and consistent course of practice. The precedent case is distinguishable from the present case. In the precedent case, there is a clear finding that the department had followed the right course in the implementation of the relevant rules. Observation relating to wrong implementation was not meant to be applied to a totally unjust and absurd construction of a rule made by a departmental authority. In the present case, the language of the amended Regulation No: 6 is absolutely clear, leaving no room whatsoever for the construction placed on it by the respondents. The regulation was not framed merely to decorate the University Calendar but to protect the rights of the examinees and save them from the malpractices being carried on by some University-employees in matters pertaining to conduct of examinations.
7. Admittedly, the petitioner has a right under the University Regulations to apply for re-checking the marks awarded to him in any Paper. He had, in fact, made the application for re-checking the marks in Paper I (written). If the respondents are permitted to rely on other material to ascertain the marks awarded to a student, then on the one hand, the provision relating to re-checking of the papers at the instance of the examinees would be rendered nugatory and on the other, the object of the amended Regulation No.6 would be frustrated. Hence, the respondents cannot be permitted to do so. They ought to retain the answer-books of the students in safe custody for securing their right of re--checking the marks. If an answer-book is lost, making re-checking impossible, then the respondents should fairly and honestly allow the benefit of the proviso to the amended Regulation No.6 to the affected student.
8. Thus, in Paper I Pharmaceutical Chemistry (Physical), which was lost due to the negligence of the respondents, the petitioner is entitled to the award of average marks obtained by him in other papers.
9. For the above reasons, the petition is allowed with no order as to costs. The respondents are, therefore, directed to declare the petitioner's result after awarding him average marks in the lost paper mentioned above.