JUDGMENT SHARIF HUSSAIN BOKHARI, J, - Through this writ petition the petitioner has prayed for issuance of direction to the respondents for awarding him lour grace marks in Paper Vi of LL.B, examination.
2. The relevant facts are that the petitioner appeared in the 1990 Annual Examination of LL.B, but failed in papers II and VI. He re-appeared in the Supplementary Examination of the same year but again failed ir. These two papers. However, in the Supplementary examination of 1991, he cleared paper II but failed in paper No. VI as he secured only 36 marks in the last paper. When the result of the petitioner was complied it was found that he had secured an average of 54% marks in all the six papers although he had failed to secure the minimum pass marks of 40% in paper No. VI.
Accordingly, "Fail Result Card" (copy at Annexure A') was issued to the petitioner by the respondent-University which gave the following details of marks obtained in each paper:- Sr. No, Marks Obtained Maximum Marks Paper I 68 100 . Paper II 49 100 Paper III 46 100 Sr. No. Marks Obtained Maximum Marks Paper IV 41 100 Paper V 55 100 Paper VI 36 100 Paper VII 65 100 {{{Table }} This Result Card also contains the condition that the petitioner "must appear in all papers next time."
3. The petitioner submitted an application for re-checking of the answer book in .Paper No. VI. He mentioned in the application that in all the three examinations in which he appeared in the L.L.B.
Examination, he was stated to have secured 36 marks in paper No. VI each time. No action was taken on this application. He then applied for re-evaluation of his papers which was also recommended by the Principal of the Punjab University Law College in the following words:- "This is rather a peculiar case, the boy has failed three time in the same paper. Each time he has secured 36 marks. Every time he has been getting very high marks, nearly 70%. This is beyond my understanding.
The student. Is not only puzzled but is very upset. W6 are puzzled too. Proper probe into the matter is need. Strongly recommended for revaluation and the reason for this happening."
He had also requested for the grant of grace of marks under Regulation No. 4 enabling him to pass the LL.B> Examination. Since no action was taken by the respondent-University on the repeated requests of the petitioner, he filed the present writ petition.
4. The respondent-University filed parawaise comments on the direction of the Court wherein the stand was taken that the petitioner was not entitled to the gross marks under amended Regulation No. 4 of the University. Regulation. No. 4 regarding the LL.B. Examination was amended in 1.970 but was notified on 12.3.1975. Regulation No. 4 is reproduced hereunder:- EXISTING REGULATION.
Every candidate shall, in order to be deemed to have passed this examination (whether taken in May or in September) be required to obtain forty per cent fo the maximum number of marks allotted to each paper, and forty five percent in the aggregate.
Provided that a candidate, who passed in the aggregate but fails in one paper by three marks or less, or a candidate who passes in all the papers but fails in the aggregate by three marks or less, shall be deemed to have passed the examination. Provided further that no candidate who passes in the examination in September shall be entitled to any prize or medal.
Successful candidates who gain sixty per cent fo the aggregate number of marks or more shall be placed in the first division and all the rest in the second division.
AMENDED REGULATION Every candidate shall, in order to be deemed to have passed this examination (whether taken in May or in September) be required to obtain forty per cent of the maximum number of marks allotted to each paper, and forty five per cent in the aggregate.
Provided that a candidate shall be deemed to have passed if he (a) fails in any individual paper by a margin of 5 marks (b) fails in the aggregate by a margin of 5 marks (c) fails in more than one paper by a margin which can be made up by distribution of five marks over the papers/aggregate in which he fails.
Provided further that a higher class shall be awarded to a candidate who miss it by a margin of 5 marks or les$i Provided-further that the grace marks shall not be awarded to any candidate for the purpose of enabling him to get exemption in any paper and to those who appear in the examination in parts.
Provided also that no candidate who passes in the examination held in September shall be entitled to any prize or medal.
Successful candidates who gain sixty per cent of the aggregate number of marks or more shall be placed in the first division; and all the rest in the second division.
5. Leamed counsel for the petitioner contends that non-action on the application submitted by the petitioner to the respondent-University for re- evaluation/re-checking of his paper No. VI amounted to refusal without justification. Alternatively, he contended that the third proviso to the amended Regulation No. 4 is unwarranted in law and in any case discriminatory. According to 1st Proviso to the amended Regulation No. 4, a candidate is deemed to have passed if he fails in any individual paper by a margin of 5 marks whereas this benefit is not. Given to those candidates, although failing by five or less marks, who have appeared in the examination in parts.
6. Thus the benefit given to the students failing in a paper by five or less marks is not given to those students who pass the examination in parts. Accordingly 3rd Proviso to Regulation No. 4 has deprived the petitioner of the benefit given to other students under 1st Proviso to Regulation No. 4.
According to 1st Proviso the benefit of 5 grace marks is given to a student who fails in one or more papers, provided the deficiency can be made up by distribution of five grace marks over the failing papers.
7. The Proviso is considered to be an exception to the general rule. As was held in Psamathe Nath Chowdhury and 17 others v. Kamir Mondal (PLD 1965 S.C. 434) by the Hon'ble Supreme Court that: - "A proviso, as is generally accepted, is in the nature of an exception to the substantive provision to which it has been appended. In the present case, this proviso has been appended to a definition clause. Normally a definition has the effect of a declaratory provision and governs all cases coming within its ambit. In the present case, however, the difficulty that has been created is by the language of clause (ii) of this proviso. The words "has been" in this proviso connote of something done in the past but the words "is held" appearing in the same clause being in the present tense would seem to refer to something that is to be done in the present. Since the clause uses both expressions in the alternative in the same clause, the question naturally arises as to what did the Legislature intend by the use of such words."
As to the principle on which a proviso has to be internetted, the Hon'ble Supreme Court in East and West Steamship Company v. Pakistan (PLD 1958 S.C. (Pak.) 41 at page 73) has observed as follows "In principle also, the words of a proviso are to be construed strictly and confined to the special case which its words enact; it would be wrong to construe those words as being co-extensive with those used in the purview, particularly where the effect might be of bringing about a repeal of the purview."
8. There is no doubt, particularly in the context of the present case, that 3rd proviso which disallows the benefit of granting 5 grace marks to the candidates under lst proviso of Regulation No. 4, refuses the same benefit to a candidate who has appeared in the examination in parts. The history of the present case is such that the beneficial construction of Regulation No. 4 as amended has to be made as it whole so as to give benefit of the grant of five grace marks to every candidate, it will be not only harsh but also discriminatory if this benefit is denied to the petitioner who has otherwise very high marks in other papers. The contention of the learned counsel for the petitioner that all the three times lie was given 36 marks each time in paper VI indicates that "something is wrong somewhere."
9. The instant case is also the one which is governed by the beneficial construction and equitable considerations. Therefore, applying the principle of beneficial construction and also the rule of interpretation laid down by the Honble Supreme Court in the aforesaid cases. I hold that 3rd proviso to amended Regulation No. 4 to the extent where the benefit of five grace marks is not granted to those candidates who appear in the examination in parts, is not valid as it is discriminatory and in direct conflict with 1st Proviso giving benefit of five grace marks to all candidates in the circumstances mentioned therein. Resultantly, this petition is accepted and respondents No. 2 and 3 are directed to give the petitioner grace marks in accordance with 1st proviso of the amended Regulation No. 4 of the University Calender relating to LL.B. Examinations and declare his result of,LL. B. Examination accordingly. No order as to costs.