1. This judgment shall dispose of W.P. Nos. 15235-93, 14802-93, 14803-93, 14805-93, 14828-93, 14887- 93, 14890-93 14891-93, 14892-93, 14893-93, 14918-93, 14919-93, 14922-93, 14937-93, 14938-93, 14965- 93, 15114-93, 15116--93, 15157-93, 15341-93, 15356-93, 15439-93, 15448-93, 15497-93, 15524-93, 15619- 93, L5617-93, 15620-93, 15683-93, 15660-93, 15661-93, 15688-93, 15813--93, 16286-93, 16477-93 and 16481-93 as in all these petitions a direction to the respondent Board of Intermediate and Secondary Education, Lahore is sought for the grant of concessional marks under Rule 12 of the Board of Intermediate and Secondary Examination Rules.
2. The petitioners in all these Constitutional petitions appeared under (composite system) in the Intermediate Examination conducted by the Board of Secondary Education in 1993 (annual) wherein they failed to qualify a subject.
3. It is argued by the learned counsel in all these cases that the petitioners are entitled to the concessional marks as envisaged under rule 12 of the Board and Secondary Examination Rules and the failure of the respondent Board to grant them the same has prejudiced their career. In all these cases the petitioners joined first year Intermediate class in the year 1991 and got their registration with the Board of Intermediate when rule 12 was in the field. A valuable right accrued to them, cannot be taken away in this manner. In support of his contention learned counsel has 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. 13305-93 and 5406--93 and many others.
4. It is also argued that the Board of Intermediate repealed/deleted rule 12 regarding composite examination through its Notification No.2/93 on 4-3-1993 and the petitioners before that date had already submitted their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 the rule 12 would not affect their cases.
5. 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 submission of examination forms and the holding of the examination, as such, this rule was not available to the petitioners. He has also pointed out that this amendment was publicised 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 contention he has relied upon the following cases:-- 1992 ALD 481, 1992 PLC (CS) 134, 1984 SCMR 433, PLD 1989 SC 262, 1992 SCMR 2430, pLD 1974 Lah. 233, pLD 1988 SC 155 and PLD 1980 SC 153.
6. 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 ire. 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.
7. 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. It is not denied as held in earlier round of litigation that before Spring 1991 the Intermediate Examination for Class XI and Class XII were held as composite examination on the completion of Class XII. Government of Punjab Education Department in its capacity as a Controlling Authority issued Notification No.SO (Boards) 1-270 89 on 15-5-1990 wherein it was decided as a matter of general policy as under:-- "It has been decided as a matter of general policy that examinations for Class XI and Class XII will be conducted separately and not as one composite examination on completion of Class XII. It is notified for the information of all concerned that within the jurisdiction of the Boards of Intermediate and Secondary Education in the Punjab, there shall be separate examination for Class XI and Class XII w.e.-- Spring Examination, 1991. The students admitted to Class XI in 1990 will appear for the examination of Class XI w.e.f. Spring 1991 and Class XII in Spring 1992."
8. 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)
9. (n)
10. (iii)
11. (iv)Such other matter as may be required under the Regulation to be provided in the Rules.
12. Chapter IX of the Regulations of the Board provides for scheme of studies for the Intermediate 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."
13. (Underlining in mine).
14. Rule 2 of Chapter 2 of the Rules for Intermediate Examination provides the condition of eligibility for a regular candidate which provides that in order to be eligible to appear in the Intermediate Examination, a regular candidate must have passed not less than two academic years previously the Secondary School Examination. Rule "z.3 provides for the payment of registration fee at the time of admission in the institution in the Intermediate Classes.
15. Rule 6.1 which pertains to the number of attempts/opportunities to qualify the examination provides as under:-- "To qualify for the grant of the Intermediate certificate, a candidate shall be provided with a maximum of three consecutive examination opportunities in case he/she qualifies at least in the subject carrying 600 marks in the first attempt."
16. However, the Committee of the Chairmen of Punjab Boards in its meeting held on 25th of August, 1992 decided that the system of annual and supplementary examinations would be introduced in ,place of 1st 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 Chairmen, Punjab Boards was approved by the Lahore Board in its meeting held on 26th of September, 1992 vide item No.9 whereafter the decision of the Board was notified vide Notification No.6/92 on 29-10- 1992.
17. Rule 12 on which reliance has been placed is reproduced as under:-- "A candidate who fails to qualify for the grant of the Intermediate certificate for want of not more than 1% of the total number of marks allotted to the relevant group, shall be given the benefit of requisite number of marks in the subjects/papers in which he has failed so as to enable him just to qualify for the grant of the certificate; subject to rule 9(ii), provided that these marks shall not be physically added to the marks obtained by the candidate in the said subjects/papers, or the aggregate but the marks actually obtained by him in these subjects/papers will be included in the aggregate, and a note to this effect will be given in the certificate."
18. It is pertinent to mention here that a Hand Book of Curricula and Syllabi for the Intermediate 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 8-8-1992, wherein admission rules, scheme of studies and details of subjects have been provided for the guidance of the students. Whatever rules have been provided in the Board Calendar for the Intermediate 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 the detriment of the interest of an employee, or a student, or as candidate for an examination of the Board, or a recognized institution."
19. The committee of the Chairmen 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:-- The Committee of the Chairmen of the Boards again held its meeting on 24-9-1992 arid reiterated its previous decision taken on 5th/6th of May, 1991 respecting the deletion of Rule 12 which is figs under:-- This decision of the Committee of Chairmen respecting the deletion of concessional marks under rule 12 was adopted by all the Boards of the Punjab but the respondent-Board adopted the same on 26-9-1992 only for part system.
20. It is pertinent to mention here that the ,part system examination remained in vogue only for one session and thereafter the respondent-Board reverted to the old composite system and the Annual Examination of 1993 was Id under the same. The respondents in its meeting held on 29-12-1992 decided for the first time to do away with the concessional marks under in composite svstem. The decision was as under:-- It pertinent to mention here that in the forestated decision Chapter 1, rule 12 pertains to the concessional marks for Secondary School Examination, Chapter 2, rule 17 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 29-12-1993. However, the Notification was issued by the Board on 4-3-1993 which was to the following effect:- The copy of this Notification was also forwarded to the following for information and necessary action: I have noticed that after this decision of the Board the matter was also publicised in the dailies respecting the deletion of concessional marks as mentioned in the preceding paragraph. At the same time, a Press release was also issued wherein schedule for admission forms for the Intermediate Examination was also issued and the last date for private and regular candidates respectively was 4-2-1993 and 11-2-1993. The Press release was as under: The aforesaid resume demonstrates that the decision for deletion of concessional marks was taken on 29th December, 1993 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: Similarly Notification No-23 was issued on 1st - -1F I'D of October, 1991 doing away with the part system in the Secondary School and Intermediate Examinations and re-enforcing the composite system earlier in vogue. This Notification is as under: 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-Qur'an. 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 il 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 behaviour 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 it is to execute it. Often grave injustice would result should the Courts reject the construction adopted by the executive authorities."
21. There is also provision as required under Chapter 5, rule 5 for 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 when 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 done away with thereafter just before the examination which commenced on 8-4-1993. It is a settled law that a Notification takes effect prospectively and not retrospectively.
22. In Crescent Pak. Industries (Pvt) Limited v. Government of Pakistan and others (1990 PTD 29), it was held that: "That 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."
23. Similarly in Messrs Itteffaq Foundries (Pvt) Limited, Lahore v. Deputy Collector of Customs, Dry Port, Moghalpura, Lahore and two 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., Sakhakot, Malakand Agency and another v. Government of Pakistan and another PLD 1965 (W.P.) Peshawar 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."
24. It has also been observed in Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons 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."
25. Even otherwise if the date of the deletion of rule 12 is taken to be 29-12-1992 that too was made at the fag-end of Class XII when the petitioners were ready to take their final examination of Intermediate. They had completed their studies for Class XII by the time the rule was deleted. 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 notified much after the submission of the examination forms just before the commencement of the examination.
26. In this regard I am fortified by the observations of the Hon'ble Supreme Court in a case titled Miss Sultana Khokhar and 2 others v. The University of the 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." .
27. 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 Lahore 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."
28. 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. Accordingly, in view of what has been stated above all these writ petitions are accepted and respondent-Board of Intermediate and Secondary Education is directed to grant concessional marks as envisaged under rule 12 of the Intermediate Examination Rules to the petitioners after full verification. There shall be no order as to costs.