This judgment shall dispose of Writ Petitions Nos. 13305, 13894, 13306, 13750, 13849, 13879, 13895, 13896, 13897, 13902, 13170, 14144, 14087, 14095, 14046, 14425, 14446, 13884, 14422, 14309 and 14452 of 1993 as in all these cases a direction to the respondent-Board of Intermediate & Secondary Education is sought for the grant of concessional marks under rule 12 of the Board of Intermediate Examinations Rules.
2. The petitioners in all these Constitutional petitions appeared in Intermediate Annual Examination, 1993 conducted by Board of Intermediate and Secondary Education, Lahore, and failed to qualify the English subject except Writ Petitions Nos. 14425, 14446, 14422 and 14309 of 1993 wherein they failed to qualify Chemistry Theory. Mst. Afshan Tabassam, petitioner of W.P. No. 13879/93 and'Humera Majid, petitioner of W.P. No. 13884/93 failed to qualify History and Biology subjects respectively.
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 of Intermediate and Secondary Examinations Rules and the failure of the respondent-Board to grant them the same has completely prejudiced their career. In all these cases the petitioners appeared in Part II of Intermediate Examination in Ist Annual of 1992 and failed to qualify the subject. A valuable right accrued to them to avail three consecutive opportunities inclusive of Ist Annual, 1992 so as to clear their subjects in accordance with Rule 6.1. Thereafter they appeared in the 2nd Annual of 1992 Examination to avail their second chance but failed. Then they availed the last attempt provided to them in the Ist Annual 1993 but they again failed to qualify the subject as mentioned in the preceding paragraph. It is also stated by the learned counsel that the petitioners in all these cases have taken provisional admission in BA./B.Sc. class and they are ripe for taking final BA./B.Sc.
Examination but for the refusal of the Board of Intermediate to grant them concessional marks under Rule 12. They have been deprived of a valuable right accrued to them at the time of taking their Part II Intermediate Examination in the Ist Annual, 1992. In support of their contentions reliance is placed upon Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407) as well as decisions of this Court rendered in W. Ps. Nos. 1429/93, 5406/93 and many other writ petitions decided respectively on 28-4-1993 and 13-10-1993.
4. Ch. Ijaz Ahmad, learned counsel for respondent-Board has reiterated his earlier stance taken before this Court stating that Rule 12 of the Board of Intermediate Examination Rules has been done away w.e.f. 26-9-1992, as such, after the deletion of the rule, the petitioners have got no right. In support of his contentions he has relied upon 1994 MLD 714, Akhtar Ali v. The Punjab Public Service Commission and others. (1992 PLC (C.S.) 134) and Chairman, Board of Intermediate and Secondary Education, Lahore and another v. Ali Mir .(1984 SCMR 433). He has further stated that Rule 6.1 which has since been modified only have the petitioner's right of three consecutive opportunities but does not guarantee them the concession of Rule 12. He has strenuously argued that after the repeal/deletion of Rule 12 on 26th of September, 1993 much before the holding of 1993 Examination, the petitioners cannot claim/base their right on the same to demand concessional marks.
5. I have given my anxious consideration to the entire facts of the case. The basic question which needs 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 XII were held as one composite examination on the completion of Class XII. The 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:-- "That examination for Class XI and Class XII shall be conducted separately and not as one composite examination:"
This notification was given effect to by all the Boards of the Punjab immediately. Subsequent thereto 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 as under:-- The Committee of the Chairmen of the Boards again held its meeting on 24-9-1992 and reiterated its previous decision taken on 5th/6th of May, 1991 respecting the deletion of Rule 12 which is as 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.
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 Regulation to be provided in the Rules.
Chapter IX of the Regulations of the Board provides for scheme of studies for the Intermediate Examination and the Rule 5 thereof provides as under:-- "The Syllabuses and Courses of Reading prescribed for examinations 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."
Rule 2 of Chapter 2 of the Rules for Intermediate Examinations 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 2.3 provides for the payment of registration fee at the time of admission in the institution in the Intermediate classes. 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 subjects carrying 600 marks in the first attempt."
Rule 12 on which the reliance is 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."
It is pertinent to mention here that a Hand Book of Curricula and Syllabi for the Intermediate Examination has been issued for the guidance of the students by the Board of Intermediate and Secondary Education, Lahore, 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 reproduced in extenso in this Hand Book. Rule 12 as well as Rule 6.1 on which the learned counsel for the petitioners have placed reliance 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."
The petitioners in all these cases took their Intermediate Part II Examination in I s t Annual, 1992 and at that time by virtue of Rule 6.1 they acquired a right to avail three opportunities in accordance with this Rule to clear their subjects. This has been so even represented by the Board when the students were issued result cards of the 2nd Annual Examination, 1992 wherein it was specifically mentioned as under:- So on the basis of Rule 6.1 and this instruction conveyed by the Board through the result card all the petitioners availed their last opportunity by taking First Annual of 1993. The factum that the petitioners were having last opportunity is also evident from the result card of the Annual 1993 sent by the Board to the petitioners wherein it is provided as under:-- This shows that Rule 12 on which the reliance is placed was very well in existence when the petitioners took their Intermediate Part II Examination in Ist Annual, 1992. It was done away with after the submission of their forms for the Intermediate 2nd Annual Examination, 1992 as the last date for the submission of forms for Intermediate for 2nd Annual, 1992 was 20th of September, 1992 while the rule was deleted on the 26th of September, 1992. This shows that a valuable right accrued to them cannot be taken away in this arbitrary manner. In this regard I am fortified by the observations of the Hon'ble Supreme Court in 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% to 45% 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 Statute." (Underlined is mine).
However, in the cases in hand the petitioners before the deletion of Rule 12 which was on 26-9-1992, had not only completed their Class XII of Intermediate studies but had also taken the examination of Ist Annual, 1992 and earned three opportunities/attempts to clear their subjects in accordance with Rule 6.1. There is another aspect of this case which needs consideration. The candidates/examinees who like petitioners availed their second attempt/opportunity by taking 2nd Annual Examination) of 1992 have been extended the benefit of Rule 12 while the same facility has been denied to the petitioners who have availed their last attempt by taking 1993 Annual Examination which action on the part of the respondents amounts to discrimination.
7. 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."
The refusal to grant concession to the petitioners would also be adversely effecting their career as earlier stated in the preceding paragraph they have already exhausted their opportunities and now they have to take the composite examination in all the subjects as reflected from their result card of Annual 1993, the Urdu version of which is already reproduced in the preceding paragraph.
However, with the grant of concession the petitioners would be in a position to take their BA./B.Sc.
Examinations in which they got provisional admissions earlier. 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.