' This judgment shall dispose of Writ Petitions Nos.14972, 16513, 16641, 16734, 16735, 16736, 16749, 16755, 16759 and 16821 of 1993 as in all these petitions a direction to the respondent-Board of Intermediate and Secondary Education, Lahore, is sought for grant of concessional marks under Rule 12 of the Board of Intermediate and Secondary Examination Rules.
2. The petitioners in all these cases appeared in the Secondary School Examination Annual 1993 held on 11th of March, 1993 conducted by the Board of Intermediate and Secondary Education, Lahore, and failed to qualify the subject. Some of them failed in the annual examination and appeared under the rules in the compartment in supplementary of 1993 but again failed to get the requisite marks and were thus declared unsuccessful.
3. It is argued by the learned counsel in all these cases that a valuable right accrued to them earlier has been taken away in an arbitrary manner as Rule 12 was in the field at the time of submission of their admission forms for examination. In support of their stance learned counsel for the petitioners have relied upon Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407) as well as decision of this Court rendered in W.P.No,13305/93 and W.P. No,15235/93. It is also argued that the Board of Intermediate repealed/deleted Rule 12 few days before the examination through its Notification No,2/93 on 4-3- 1993 and the petitioners before that date had already submitted their admission forms for the examination, as such, the repeal/deletion of Rule 12 would not effect their cases.
4. Learned counsel for the respondent Ch. Ijaz Ahmad has stated that Rule 12 was deleted by the Board in its meeting held on 29-12-1992 vide its Item No,2 before the holding of the examination, as such, the same was not available to the petitioners. He has also pointed out that this amendment was publicized in the Press through Daily "Mashriq" dated 15-1-1993, the Daily "Pakistan" dated 5-1- 1993 and the Daily "The News" dated 10-1-1993. The petitioners have got no vested right in the mode of examination particularly so when the rule 12 is no more in the field. In support of his contentions he has relied upon the following cases: ' 1994 MLD 714; 1992 PLC (CS) 134; 1984 SCMR 433; PLD 1989 SC 262; 1992 SCMR 2430; PLD 1974 LA.
233; PLD 1988 SC 155 and PLD 1980 SC 153.
' It is also argued that the issuance of the notification for the applicability of the Board's decision was not a sine qua non as the same became effective on 29-12-1992 i,e, the date on which it was passed. The Notification dated 4-3-1993 relied upon by the petitioners was issued without any requirement inadvertently for which an enquiry is under progress to find out the reasons for its issuance.
5. I have considered the contentions and have gone through the entire facts. The basic question which requires determination in all these cases is whether the petitioners are entitled to the concession of rule 12.
6. Section 21 of the Punjab Board of Intermediate and Secondary Education Examination Act, 1976 (hereinafter referred to as "the Act") empowers the Board to make rules consistent with its Act and Regulations to provide (i).....................................................
(ii)....................................................
(iii).....................................
(iv) Such other matter as may be required under the Regulations to be provided in the Rules.
' Chapter VIII of the Regulations of the Board provides for scheme of studies for the Secondary Schools Examination and Rule 5 of Chapter 5 therefore, provides as under: "The Syllabuses and Courses of Reading prescribed for examination can be changed from time to time by the Board; such changes being duly notified ordinarily two years before the date of the examination from which they are to take effect."
(Underline is mine)
7. Rule 6.1 which pertains to the number of attempts/opportunities to qualify the examination provides as under:- "To qualify for the grant of Secondary School Certificate, a candidate shall be provided with maximum of three consecutive examination opportunities in case he/she qualifies at least four subjects in the first attempt."
' However, the Committee of the Chairman of Punjab Board in its meeting held on 25th of August, 1992 decided that the system of annual and supplementary examinations would be introduced in place of Ist and 2nd Annual Examination in which those candidates who fail in two subjects in their annual examination. Will be eligible to appear in the supplementary examination 1993 and those who would fail in one subject in 1994 annual examination and onward, would qualify to appear in the supplementary examination 1994 and onward. This decision of the Committee of Chairman, Punjab Boards was approved by the Lahore Board in its meeting held on 26th of September, 1992 vide Item No,9 where after the decision of the Board was notified vide Notification No,6/92 on 29- 10-1992.
' Rule 12 on which reliance has been placed is reproduced as under:-- "A candidate who fails to qualify for the grant of the Secondary School Certificate, or for eligibility for admission to Intermediate education, for want of not more than nine marks, shall be given the benefit of the requisite number of marks (not being more than nine) so as to enable him/her just to qualify for the grant of the certificate or eligibility for admission to Intermediate education, as the case, may be: subject to rule 9(ii) provided that these marks obtained by the candidate in the subjects/papers in which he had failed, or in the aggregate, but the marks actually obtained by him in such subjects/papers will be included in the aggregate, and a note to this effect will be given on the certificate."
' It is pertinent to mention here that a Hand Book of Curricula and Syllabi for the Secondary School Examination to be held in 1993 has been issued for the guidance of the students by the Board of Intermediate and Secondary Education, Lahore, on 21-9-1992, wherein admission rules scheme of studies and details of the subjects have been provided for the guidance of the students. Whatever rule have been provided in the Board Calendar for the Secondary School Examination have also been provided in this Hand Book. Chapter-III of the Regulation 2(2) of the Calendar of the Board of Intermediate and Secondary Education, Lahore, provides as under:-- "Regulations or rules shall take effect from the date of their approval unless any other date is specified therein as the date from which they are to come into force:- ' Provided that a regulation or a rule shall take retrospective effect only if it is not to be detriment of the interest of an employee, or a student or as candidate for an examination of the Board, or a recognized institution."
8. The Committee of the Chairman of the Boards of the Punjab in a meeting held on 5th/6th of May, 1991 vide its Item No,4 decided to do away with the concessional marks respecting 'part system.
The decision was as under:-- {{URDU TEXT}} ' This decision of the Board taking away concessional marks had no effect on the petitioners because part system though announced but was never implemented respecting Secondary Schools Examination which remained composite. The respondents in its meeting held on 29-12- 1992 decided for the first time to do away with the concessional marks under composite system.
The decision was as under:-- {{URDU TEXT}} ' It is pertinent to mention here that in the foretasted decision Chapter 1, Rule 12 pertains to the concessional marks for Secondary School Examination, Chapter 2, Rule 12 pertains to the concessional marks for Intermediate Examination and Chapter 3, Rule 9 pertains to the concessional marks for Adeeb, Faazil and Aalim examination. The decision as earlier stated to do away with concessional marks was taken on 29-12-1992. However, the Notification was issued by the Board on 4-3-1993 which was to the following effect:-- {{URDU TEXT}} ' The copy of this Notification was also forwarded to the following for information and necessary action:- {{URDU TEXT}}-1 ------------------------------------ -2 ------------------------------------ -3 ------------------------------------------- -4 ------------------------------------------- -5 ------------------------------------------- -6 ------------------------------------------- -7 ------------------------------------------- -8 ------------------------------------------- -9 -------------------------------------------- -10
9. I have noticed that after this decision of the Board, the matter was also publicized in the dailies as mentioned in the preceding paragraph. However, before this decision/deletion, the Board through Press Release issued schedule on 18-11-1992 for the submission of admission forms for the Secondary School Examination and the last date for private and regular students respectively was 29-12-1992 and 12-1-1993. The Press Release was as under:-- {{URUD TEXT}}
10. The aforesaid resume demonstrates that the decision for deletion of concessional marks was taken on 29th December, 1992 while the Notification thereof was issued on 4-3-1992. The argument of the learned counsel that there was no requirement for issuance of Notification for the implementation of the Board decision is not supported from the practice of the Board itself. As mentioned earlier notification for the modification of Rule 6.1 in making amendments in the attempt for the examination was approved by the Lahore Board in its meeting held on 26-9-1992 while this decision of the Board was notified through Notification No,6 of 1992 on 29th of October, 1992 which is as under:-- {{URDU TEXT}} ' Similarly Notification No,23, was issued on Ist of October, 1991 doing away with the part system in the Secondary School & Intermediate Examinations and re-enforcing the composite system earlier in vogue. This Notification is as under: {{URDU TEXT}} ' Further Notification No,18 of 1992 was issued on 13-10-1992 by the respondent-Board for the grant of 20 marks to Hafiz-e-Quran. In these circumstances, it does not lie in the mouth of the respondents to say that there was no practice of issuing Notification respecting the decision of the Board and the present Notification No,6 of 1993 dated 4th of March, 1993 has been issued without any requirement inadvertently.
' Reliance in this respect is placed upon Nazir Ahmad v. Pakistan and 11 others (PLD 1970 SC 453) wherein it has been held that: "The department practice has followed the right course in the implementation of the relevant rule but whether right or wrong, it will be extremely unfair to make a departure from it now after a lapse of so many years and to disturb rights that have been settled by a long and consistent course by this practice. In the case of the appellant, the seniority initially accorded to him has held the ground continuously for ten long years until it was disturbed by. The impugned order. This, to say the least, is bound to weaken the faith of the employees in the attitude and behaviors of the department. A passage from Crawford's Statutory Construction (1940 edition at page 399) may be usefully reproduced to point out the effect of "departmental construction", that is to say, the construction which is placed in practice on the provision of a statute or rules by the administrative authorities who are charged with the execution of the statute or the rules. The learned author observes: "Where the executive construction has been followed for a long time an element of estoppel seems to be involved. Naturally many rights will grow up in reliance upon the interpretation placed upon a statute by those, whose duty is to execute it. Often grave injustice would result should the Courts reject the construction adopted by the executive authorities."
11. There is also provision as required under Chapter 5, rule 5 of the issuance of Notification for the change brought about in the courses of reading prescribed for examination which according to this rule is notified ordinarily two years before the date of examination. As stated above the respondents have been issuing Notification for the implementation of other changes brought about in the mode of examination. In the case in hand the Notification was issued on 4-3-1993 while rule 12 on which reliance is placed was very well in existence at the time of submission of forms for the examination and it was A done away with thereafter just before the examination which commenced on 11-3-1993. It is a settled law that a Notification takes effect prospectively and not retrospectively.
' In Crescent Pak. Industries (Pvt.) Limited v. Government of Pakistan and others (1990 PTD 29), it was held that: "The withdrawal of exemption, therefore, under section 7 of the Sales Tax Act w.e.f. 26-6-1988 could not be given effect to retrospectively so as to infringe petitioner's rights which on payment and opening of letters of credit, on 18-6-1988 had duly been established. Even otherwise, it is well- settled that a notification operates only prospectively and not retrospectively. The imposition of Sales Tax, by withdrawal of exemption through notification dated 26-6-1988, thus can only be prospective and not retrospective."
' Similarly in Messrs Ittefaq Foundries (Pvt.) Limited, Lahore v. Deputy Collector of Customs Dry Port, Moghalpura, Lahore and 2 others 1988 MLD 2272 it was observed that: "It is almost settled that a notification cannot be issued with a view to have retrospective effect in operation and to affect the vested rights under the prior notification. This view was expressed in the Division Bench case reported as Messrs Mardan Industries Ltd., Shahkot. Malakand Agency and another v. Government of Pakistan and another PLD 1965 (W.P.) Pesh.
47. In the latter judgment Messrs M. Afzal & Sons and 2 others and Federal Government of Pakistan through Secretary Finance and another PLD 1978 Lah. 468, it was observed that it is well- established proposition of law that an act of subordinate legislative authority cannot be applied retrospectively unless law confers power to do so."
' It has also been observed in Commissioner of Sales Tax (West) Karachi v. Messrs Krudsons Ltd. PLD 1974 SC 180 that:-- "It is well-settled proposition that a notification by the Provincial Government cannot operate retrospectively to impair an existing right or to nullify the effect of a final judgment of a competent Court even if the notification be expressly so designed."
12. Even otherwise if the date of the deletion of Rule 12 is taken to be 29-12-1992 that too was made on the last date for the submission of forms for the private candidates and few days before for the regular candidates and by this time the petitioners had already completed their studies. Had they been made aware earlier, certainly they would have been very much clear in their minds that the concessional marks under Rule 12 would not be available to them. The application of this newly- made notification/decision to the petitioners in these circumstances appears to be harsh as the same has taken away the right accrued to them earlier, particularly so when it was passed by the Board in its meeting at the same time when the last date for submission of admission forms was going to be over and the notification in this respect was issued on 4th of March, 1993 just before the commencement of the examination. In this regard I am fortified by the observations of the Honorable Supreme Court in the case titled Miss Sultana Khokhar and 2 others v. University of Punjab, through its Registrar reported in PLD 1962 SC 35 while upholding the applicability of the newly-amended statutes of the University of the Punjab by which (i) the pass aggregate was raised from 40% and (ii) the examinees were required to qualify by obtaining at least 33% marks in each paper of both the written and the practical parts of the examination, it was observed as under:-- "No such excuse exists in the case of the present petitioners for the amended statute came into operation even before the present petitioners embarked upon their final year of study. Hence it cannot be said that the University has either applied the amended statute in a discriminatory fashion or that it has applied it retrospectively. The present petitioners had ample notice before they commenced their course of studies for the final year or the B.Sc. Honours School that they would be examined in the examinations in accordance with the amended statutes."
12. It is pertinent to mention here that in Rule 12 the expression "shall" has been used which prima facie cast a duty to grant the Concessional marks. It has been held in Muhammad Mushtaq and another v. Bashir Ahmad Chaudhry and another PLD 1991 Lah. 400 as under:-- "Prima facie the expression "shall" when it appears in a statute is used as a term of art to impose a duty to do what is prescribed, not a discretion to do it or not according to whether it is reasonably practicable to do it or to do something like it instead."
' The denial of this concession would also be in conflict with Regulation 2(2) of Chapter III of Board of Intermediate being detrimental to the petitioners as this would amount to depriving them of a valuable right accrued to them earlier. As far as the case of the petitioners, who appeared in supplementary examination 1993, is concerned that cannot be treated differently from those who appeared in, Annual 1993. The supplementary examination of 1993 is continuation/part of the annual examination and the candidates were allowed ' Muhammad informer which was settled by way of compromise which was finally maintained by this Court vide order, dated 2-2-1973 which order was further upheld by the Supreme Court on 12- 3-1974. The effect of the compromise was that out of the land given to Qutab-ud-Din and Qasim Ali as heirs of Muhammad Din only 93 Kanals 10 Marlas of land was surrendered in favour of Ali Muhammad. The allegations of the respondents that Muhammad Din through whom Qutab-ud- Din and Qasim Ali inherited was alive and therefore, the land was obtained fraudulently was also the subject-matter of the previous litigation and this has been taken note of by the Hon'ble Supreme Court in the narration of facts which are as hereunder:--- "The information was later on laid by Ali Muhammad respondent No,1 that both Muhammad Din and Mst. Ghulam Fatima were alive and that the petitioners had obtained the allotment fraudulently. An inquiry was held by the Assistant Rehabilitation Commissioner who found that Muhammad Din and Mst. Ghulam Fatima were alive and the allotment of land obtained by the petitioners as well as the mutations of inheritance sanctioned at their instance were liable to be set aside."
8. Despite above allegations the Settlement Commissioner did not want to reopen the case and accepted the compromise between Ali Muhammad on one hand and Qasim Ali and Ghulam Fatima on the other hand where the latter had surrendered the land measuring 93 Kanals 10 Marlas in favour of the informer and rest of the land was allowed to be retained. In view of the aforementioned facts the respondents could not act as second informer on the same facts which were subject-matter of the lengthy litigation and finally the compromise was accepted by the Settlement Commissioner on 18-2-1960 and was also maintained by the Hon'ble Supreme Court.
The respondents have been permanently settled on the land in dispute and the matter having already been decided one way or the other the cancellation of the land by the A Additional Settlement Commissioner on 26-1-1976 was set aside by order, dated 17-12-1992 of this Court in pursuance of which the impugned order has been passed in favour of the respondents.
9. When confronted the learned counsel for the petitioners was not able to satisfy me as to how the Settlement Authorities could reopen the case in view of the previous litigation which was concluded by order dated 12-3-1974 of the Supreme Court.
' For the reasons stated above I do not find any merit in this writ petition which is dismissed in limine.