' This judgment will also dispose of Writ Petitions Nos.5708, 5713, 5714 and 5716 of 1996 as all these petitions involve common questions of law and facts and require joint disposal.
2. In all these cases each of the petitioner, appeared in Secondary School Examination, Annual 1994, passed in all subjects except one, was admitted in 1st Year of the higher secondary school classes provisionally, was allowed to take the failed subject in Supplementary Examination, 1994 or First Annual Examination, 1995 and each of the petitioner cleared the failed subject also latest by taking it in Annual, 1995. Each of the petitioners applied for permission to take the Higher Secondary School Examination First Annual, 1996 commencing from 4-4-1996 but the petitioner was refused roll number on the ground that the period of two academic years has not lapsed between the passing of the Secondary School Examination, and the taking of Higher Secondary School Examination, 1996. This led the petitioner to file the Constitutional petitions separately on the ground, inter alia, that interpretation of Rule 2 in Chapter 2 of the Calendar of the Board of Intermediate and Secondary Education, Lahore, 1986 (Revised Edition, being put by the respondent-Board, is illegal.
2. In each of the petitions, the respondent Board has filed its replies wherein essential facts have not been denied. However, it is maintained that vide Notification No,2/91 dated 1-1-1991, the respondent Board amended the relevant Rules so as to declare that unless the candidate has passed all the eight subjects of the Secondary School Examination, he will not be deemed to have passed the examination and will be issued the certificate only after clearance of all the eight subjects. This decision was directed to be enforced from the Secondary School Examination First Annual, 1993.
3. During the course of hearing each of the contesting parties, represented through their learned counsel, has reiterated assertions made in their respective pleadings. After hearing the learned counsel, the question which arises for determination it as to whether, in each of these petitions, the petitioners will be deemed to have passed the Secondary School Examination in 1994 and, therefore, entitled to take the Intermediate Examination to be held in April, 1996 or not. In other words what is the precise legal effect of their having cleared one or two subjects not in the Annual 1994 Examination but later in Annual 1995 Examination and whether the period of two academic years will run or should be deemed to run from the passing of their failed subject in 1995 or from the taking of the Annual Examination, 1994 in which each of the petitioner passed in the majority of the subjects; seven out of eight or in one case, six out of eight.
4. Before proceeding to answer the issue, it is appropriate to reproduce the relevant rules: ' CHAPTER 2 ' RULES FOR THE INTERMEDIATE EXAMINATION
2. In order to be eligible to appear in the Intermediate Examination, a regular candidate must have passed, not less than two academic years previously;
(1) (i) the Secondary School Examination in at least seven subjects of Components I & II (taken together) of the Scheme of Studies introduced in 1976, provided that a candidate who has passed in seven subjects will be eligible to appear in the Intermediate Examination only if he does not offer that subject for the Intermediate Examination, in which he failed in the. Secondary Education; provided further that a candidate who initially passed in seven subjects will be eligible to offer the eight subjects in which he failed in the Secondary School Examination only if he has qualified -the same subject by availing the next chances;
(ii) an examination recognised as equivalent thereto;
(2) been enrolled in an institution for at least two academic years preceding the examination; or, one academic year preceding thereto if he has completed the 11th class course two years previously; paid the prescribed registration fee to the Board at the time of his admission to the institution in the Intermediate classes; his admission form and the prescribed fees submitted to the Board through the head of his institution by such dates as may be fixed by the Board, together with the following certificates signed by the head of the institution;
(i) of possessing good moral character; (ii)(a) of having attended not less than 75% of the total number of lectures delivered in each of the subjects taken up for study;
(b) of having performed at least 75% of the total number of practical's prescribed for each subject of study a component of which comprises practical work;
(iii) of having devoted during the two academic years preceding the examination;
(a) at least 60 hours to physical exercise;
(b) at least 72 hours to manual work and civil defence training;
(iv) of having satisfactorily performed to work of the class during his stay in the Intermediate classes.
' The amended decisions as reflected in the referred notification and relied upon by the respondent-Board is as follows:--- {{URDU TEXT}}
5. Two principals have to be kept in view in answering the issue. One, that strict and rigid interpretation is to be avoided and in the circumstances of the case a beneficial interpretation should be followed. Two, efforts should be made to gather true object/intention behind the provision of gap of two academic years. The third aspect is equally important and it is that under its own Rules, Respondent Board permits the examination to be cleared in parts.
6. The intention behind the insistence that between passing of the Matriculation Examination and taking of the intermediate/ Higher Secondary School Examination seems to be that a candidate must have taken instructions in the subject for at least two years before he is allowed to take the examination of Intermediate. In each of these cases, the admitted fact is that the petitioner after clearing majority of subjects in the Matriculation Examination, 1994 obtained admission in 1st year of Intermediate Classes and started taking instructions in the various colleges mentioned in each of the petitions. Although the admission for them was provisional but in so far as attending classes and hearing teachers in classrooms and doing homework etc. And participating in other college activities were concerned, each of the petitioner was at par with the rest of the students who had been regularly admitted. In this sense, therefore, Sub-rule (2) of Rule 2 in the above reproduced Rule has been complied with. The intention of the Rule got satisfied as the petitioner obtained desired instructions from the relevant school/college. This intention having been satisfied, the stand taken by the respondent-Board can only be upheld if the intention behind the original Rule as well as the amended Rule is held to be the punishment of a candidate who clears the examination in parts but this penal construction of the Rule is excluded by the other Rules of the respondent-Board under which it permitted each of the petitioner to clear failed subject in the subsequent examination which, as noted, each of the petitioner cleared in the Annual 1995 Examination while they were taking instructions in the higher classes. In the circumstances and with the above interpretation keeping in view, I see no logic in the assertion of the learned counsel for the respondent-Board that two years' period in the cases of the petitioner should be deemed to commence from the passing of the failed subject. As I noted and find, it is not the intention of the Rule to impose any punishment. At the cost of repetition, let it be noted that the intention of the Rule is that a candidate to the Intermediate Examination has undergone instructions for two years after Matriculation Examination. The petitioners precisely did this when they were granted provisional admission in their respective institutions where they took instructions in the subject of Intermediate education. I, therefore, hold that two years' period will commence from the passing of the Annual 1994 Examination and not from passing of the date of failed subject. If the respondent- Board has that intention it will have to disallow the clearance of examination in parts and should insist that a candidate of Matriculation Examination should pass it in one-go and not in parts. After allowing permission to clear in parts, the respondent-Board cannot withdraw the benefit of piecemeal clearance of examination on the strength of the abovenoted Rule, as amended.
7. Even the amendment brought about vide Notification dated 1-1-1991 does not achieve the purpose as canvassed by the learned counsel for the notification does not as such amend the relevant paragraph of Chapter 2 of the respondent-Board. It may be noted that the decision as incorporated in the calendar as reproduced above. However, assuming that the amendment is valid, it only changes the number of subjects to be passed from seven to eight before a candidate can be deemed to have passed. The Secondary School Examination. The amendment does not answer the question as to when the period of two years will run for a candidate who clears the subject in parts as permitted by the respondent-Board itself. A candidate will' be deemed to have passed when he clears all the eight subjects and not seven as in the original Rule but the passing will be related back to the examination in which a candidate appeared and in this case it will be Annual, 1994.
8. Number of judgments have been cited on both sides for and against their respective contentions but on examination, most of them have not been found relevant. In none of the judgments, the question being dealt with in this judgment has been directly or remotely discussed. Similarly, I did not permit learned counsel for some of the petitioners namely Ch. Muhammad Nasrullah Warraich, Advocate, to argue on the point of validity of the amended Rule as no such ground was taken in the petitions. The reliance by the learned counsel for the respondent-Board on an unreported Single Bench Judgment of this Court dated 17-9-1996 passed in Writ Petition No,16446 of 1995 is of no help to the respondent-Board inasmuch as the facts in the cited case were slightly different and the learned Single Bench dismissed the petition in limine. The cited judgment does not lay down the law that the period of two years will commence from the date of clearance of the failed subject but if it does say so then with the profoundest of respect, I would differ with the same.
9. For the reasons noted above, all these petitions are allowed and the refusal of the respondent- Board to permit each of the petitioner to appear in Intermediate Examination First Annual, 1996 is hereby declared as without lawful authority and, therefore, of no legal effect. It may be noted that under the interim orders of this Court, each of the petitioner has appeared in the aforesaid examination and, whatever is the result, the same will be legal because the petitions against the refusal of the respondent-Board are being allowed. Since the point involved was of first impression, the parties are left to bear their own costs.