1. ' WAJIHUDDIN AHMED, J.---The petitioner, appearing in person, has urged that the official respondents, in relation to his seeking admission in Dow/Sindh Medical College, have, illegally and improperly, disallowed 5 marks from the aggregate ostensibly on the ground that he had made a second attempt to clear the Intermediate Science Examination when all that the petitioner had done was to change the discipline from Pre-Engineering to Pre-Medical. Such had come about through permission to appear in the additional subject of Biology granted by the Board of Intermediate Education, Karachi, dated 28-11-1992 (Annexure H), the petitioner having already done his Intermediate Science in mid-1992. It is claimed that if the aforesaid deduction had not been imposed the petitioner would have succeeded in getting admission because the last four candidates on the list of successful candidates had the same number of marks as the petitioner viz. 824 (inclusive NCC). No private respondent has controverted the plea.
2. ' His other contention has been that a number of candidates were allowed admission on account of illegally procured PRC and Domicile certificates, had which not been the case, the petitioner would have secured the admission anyway.
3. ' Comments have been submitted and it is pleaded that the petitioner had made an "extra attempt" making him liable, under the Rules, to a deduction of 5 marks, which, reduced thus, stood at 819 and the petitioner's name accordingly, appeared at serial number 650 on the list. Dr. Capt.
4. Niaz Muhammad Ali of the Department of Health has sworn an affidavit averring that such compulsory deduction has never and in no case been condoned.
5. ' Mr. A.G. Mangi, Additional Advocate-General and Mr. K.M. Nadeem, Assistant Advocate-General, at the preliminary and final hearings, respectively, have referred us to the Explanation in sub-clause
(iii) of clause (b) in rule 17 of the Rules (1993-94 Prospectus) as well as sub-clauses (iv), (v) and (vi) of the same clause and rule, which are in these terms:--- "Explanation.---In case a candidate does not clear Inter-Science Examination within the minimum period required for passing the same after passing Matriculation Examination, every additional year or part of a year beyond this period shall be treated as his/her attempt for the purpose of deducting marks irrespective of his/her having not appeared in the examination in such year.
(iv) It may be further clarified that for the loss of each extra year or part of a year 5 marks shall be deducted from the total marks.
(v) Same rules shall apply if candidate fails to clear B.Sc. Examination within the minimum period required for passing such examination after Matriculation.
(vi) In case the adjusted marks of two or more candidates are equal, the candidate securing higher marks in the matric examination shall be ranked higher in merit for purpose of admission. If the matric marks are also equal, only then the candidates older in age shall be ranked higher in merit. Production of Equivalence of marks sheet shall be the responsibility of candidate."
6. ' It is, on the strength of the reproduced rule, urged that because the petitioner initially cleared Intermediate Science (Pre-Engineering) and then qualified in Intermediate Science (Pre-Medical), the latter qualification would involve loss of a year or part of a year thereby subjecting him to a deduction of five marks in terms prescribed. On our part, we required the learned counsel to enlighten us on some aspects of the matter, which, apparently, seemed to support the petitioner's case. Firstly, in the quoted Explanation, the clause "in case a candidate does not clear Intermediate Science Examination within the minimum period required" did not include the word "the" before the words, "Intermediate Science Examination" and, therefore, it may not have been unlikely that the Intermediate Science Examination, spoken of in the Explanation, was not intended to be "the" examination on the basis of which admission was sought in a given case. It could be any Intermediate Science Examination. The rule, plainly, being relevant to admissions of students had to be broadly construed and an interpretation beneficial to the candidate was to be preferred.
7. Secondly, in so far as the basic qualification in Intermediate Science was concerned, the candidate seemed to have obtained one in 1992, only appearing and clearing, under permission, in the additional subject of Biology in 1993. This was ex facie recognised in the Board's letter of permission (Annexure H) itself which spoke, in a printed form, of "Faisal Asad son of Asadullah Khan having passed at H.S.C. With Science Group from Karachi Board in the year 1992" and proceeded to permit him to appear at the HSC, Part I & H Annual Examination, 1993 in the "additional(s)" of Biology I & II.
8. This was in clear contradistinction to permission(s) for re-appearing in all the subjects with a view to improvement of Division/marks for which a distinct form was utilised (Annexure I) and which indeed involved and constituted a second attempt, predictably attracting one or more deductions.
9. ' We had also, at the same time, desired to know whether there were any precedents in relation to medical college admissions where cases similar to those of the petitioner had or had not been subjected to deduction of marks.
10. ' Mr. K.M. Nadeem was unable to place before us any precedent(s) of deduction(s) in cases similar to that of the petitioner. This was the affirmative angle. The A.A.-G., however, urged negatively, what the official respondents have submitted in writing, that in no case any condonation as regards compulsory deduction was allowed. This amounted to bagging the question because the eventuality of condonation would arise only when deduction becomes invokable and would have no relevance where a case did not warrant deduction at all.
11. ' As to the first two queries, reflected above, the learned A. A.-G. Drew our attention to rule 2(ii) in the prospectus which showed the alternative qualification(s) for admission to the first year M.B.,B.S. Classes as Intermediate Science (Pre- Medical Group) or B.Sc. (Biological Science). We, in context, tended to view that it may well have been that if a person had qualified his B.Sc. (Biological Science), it could be irrelevant whether he came through after having earlier done his Intermediate Science (Pre-Medical) or (Pre- Engineering). If that were so, further implication could be that no loss of time on the part of a student in this situation may have been invocable for deduction of marks if the B.Sc. (Biological Science) qualification was acquired within the minimum period contemplated.
12. ' In continuation of the last line of approach, the learned A.A.-G. Placed before us a copy of the University of Karachi Code. Under the title, "faculty of science", relative to B.Sc. (Pass) degree, at page 172 of the Code, it has been expressly provided that a candidate offering Physics (in B.Sc.) must have passed the Intermediate or H.S.C. Examination in Mathematics and correspondingly, a student passing Inter-science without Biology shall not be allowed to take up subjects of the Biology Group at B.Sc. We have not been shown any rule or byelaw of the University whereunder such terms could be relaxed. The inference, therefore, that in case the petitioner had done his B.Sc.
13. In Biology on the basis of H.S.C. (Pre-Engineering) he may not have been deemed to lose any year of his course of study and on that assumption may not have been amenable to reduction of 5 marks, does not hold good for the simple reason that sans (?) Biology in Intermediate he could not be allowed to take up .Subjects of the Biology Group at B.Sc.
14. ' The foregoing was, however, only a digression calculated to discover, whether in the event a student, situated as the petitioner, went on to qualify B.Sc. (Biology Science) he could still be held liable to deduction of marks. The basic questions posed in the earlier part of this order still remain.
15. We refer to the absence of the word "the" before the words "Intermediate Science Examination" in the Explanation to sub-clause (iii) of clause (b) in rule 17 of the Prospectus. "The" is known as the definite article used to denote a particular person or thing or species. Had it been employed in context it would have denoted only Intermediate Science Examination (Pre-Medical), which is what was required for admission to the M,B.,B.S. Course. The relevance here was, however, different. It was the liability for deduction of marks and not admission. The omission to specify as to in which particular discipline the student ought to have passed Intermediate Science, within the minimum period, seems to have been deliberate and not without reason. It has been seen that when a candidate takes up an additional subject, say Biology, he does not qualify Intermediate Science afresh. On the contrary, he is deemed to have cleared it when he does it for the first time (Annexure H). Such clearance seems to be the terminus a quo for the purposes of deduction. Similar is not the case when he repeats for improvement of his grades. There he has to give up his earlier qualification and clears Intermediate Science afresh. If he fails, he is deemed never to have cleared Intermediate Science before. Such is, obviously, a second attempt and alone falls within the mischief of the Explanation. Not so is a case like that of the petitioner. A failure to qualify the additional subject(s) offered is just that. There are no implications, no fallout. The existing Intermediate qualification holds, in no way impaired. Indeed, realising this the official respondents have carefully termed the petitioner's corresponding attempt only as an "extra" attempt. At any event, as said earlier, the provision being penal is to be strictly construed and the penalty is to be visited only if the liability was clear and free from all doubt, which is not the case here. Coupled with this is the beneficial rule of construction, which is to be applied in students' cases with the well recognized object of suppressing the mischief and advancing the remedy.
16. ' Another aspect of the matter is that the student did not even attempt to seek admission in any Engineering Institution after passing Intermediate and, because he was so disposed, he opted to qualify, in the additional subject(s) of Intermediate Science (Pre-Medical). As said, such also was not a case of reappearing in the same examination for improvement of Division or marks, thereby arguably entailing loss of one year. Manifestly, the petitioner qualified the H.S.C. Science Examination within the minimum prescribed time but could obtain admission in a medical college only if he had cleared H.S.C. In the Pre-Medical Group, which requirement he has since duly fulfilled.
17. ' Another appeal of the petitioner is to the effect that many a candidates have obtained PRC and Domicile Certificates fraudulently and he has relied on some press reports etc. If so, the petitioner could always approach the relevant forums. Learned counsel for the respondents Nos.5 and 10, who have contested, can also say no more. Without the petitioners exhausting the alternative remedies we cannot interfere on that score.
18. ' However, as to deduction of the petitioner's marks, in terms foregoing, we are of the view that such came about without lawful authority and we hold accordingly. The petitioner shall, therefore, be considered on merit without resorting to any such deduction and, if what he has said about four other candidates enjoying the same number of marks be true, would be accorded due admission, in case he otherwise, as per rules and requirements, gets the better of any of them. In this view of the matter, on 31-5-1994, we had disposed of the petition and the miscellaneous application by recording the following short order:--- "S.Nos. 1 and 2: ' Hearing the parties, but for reasons to be recorded separately, we allow this petition and direct that the petitioner be admitted in terms prayed without deducting the allegedly applicable five (5) marks from the total number of marks secured by him. There would, however, be no costs to this petition.