' Plaintiff Dil Nawaz Khan (the respondent herein) brought a declaratory suit in the Court of Senior Civil Judge, Peshawar against the defendants University of Peshawar and three others (the petitioner herein). It is averred in the plaint that the respondent was a regular student of M.Sc.
(Geography), appeared in 1986 Annual Examination and secured 532 marks and was placed in 3rd Division; that the respondent in order to improve his division appeared in 1987 Examination (Annual) and according to Gazette Notification No,123 dated 31-7-1987 obtained 687 marks and improved his division from 3rd to 2nd and a Provisional Certificate by the Department was also issued to the respondent to this effect; that after few months of the declaration of the result when the plaintiff-respondent obtained Detailed Marks Certificate he found that on D.M.C., it was written "Division not improved" and shown respondent having failed in Paper IV securing 24 marks out of 100 marks. It is further stated that the plaintiff-respondent approached defendant No,3 for correction of the error but with no fruitful result; that thereafter the plaintiff-respondent again applied to defendant No,3 for the grant of 9 grace marks as he was entitled to it in accordance with the rules adopted by the University. Having failed the plaintiff-respondent again approached defendant No,2, that the relevant paper be sent for rechecking. The plaintiff also requested, if 9 grace marks or re-checking of paper is not permitted then he be given another chance to improve division but with no success. Hence the plaintiff-respondent preferred the suit.
2. The defendants-petitioners contested the suit vehemently on factual as well as on legal stance.
The trial Court, out of the pleadings of the parties, framed as many as four issues given hereinbelow:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether the Court has got jurisdiction to entertain the present suit?
(3) Whether the plaintiff is entitled to the decree as prayed for?
(4) Relief.
' The learned Civil Judge, Peshawar after recording the evidence of the parties which they wished to adduce, decreed the suit of the plaintiff-respondent partially to the extent to avail another chance to improve his division and dismissed the other prayers vide his judgment and decree dated 20-9- 1992. Feeling aggrieved the plaintiff filed an appeal before the learned Additional District Judge, Peshawar who by his order dated 18-4-1993 accepted the appeal and the judgment and decree of the trial Court was modified and the plaintiff-respondent was declared to be entitled to degree in M.Sc. (Geography) in 2nd division on the basis of Gazette Notification No,123 dated 31-7-1989 or in the alternative to 9 grace marks/condonation marks under the relevant rules so this revision petition by University of Peshawar etc. Under section 115, C.P.C.
3. The learned counsel for the petitioners argued that the judgment and decree of the lower Court are not in conformity with law, rules and bye-laws framed by the University of Peshawar--the Notification/Gazette No,123 dated 31-7-1989 is quite clear whereby it is given to understand that it is a notice. It does not confer any right, privilege unless proper Degree of Certificate is awarded. Error, omission if any are subject to subsequent re-certification, the Appellate Court had no jurisdiction or authority to grant a Degree to respondent by passing him in M.Sc. Geography in 2nd Division with 687 marks or to allow him 9 grace marks, the prior Notification was the result of clerical error and that it was typing mistake on the part of the petitioners staff. As per rules only 6 grace marks are allowed and there is only one chance approved for the improvement purpose. So the learned lower Court did not interpret the relevant rules properly and acted illegally and without lawful authority as such decrees and orders of both the Courts below be set 'aside and the suit of the respondent-plaintiff be dismissed with costs.
4. In defence the respondent-plaintiff Dil Nawaz Khan appeared personally and argued the case himself who reiterated his earlier stand that he was first declared successful in second division and when a need arose for D.M.C. For applying for service through Public Service Commission thereafter he came to know about the situation by finding remarks "D.N.I." on D.M.C. He thus approached the authorities personally and through written requests a number of time asking for the relief either to re-check the paper or to allow 9 grace marks or to allow second chance for improvement but efforts borne fruitless and of no value so the respondent-plaintiff was compelled to knock the door of the Court for justice, fair and proper relief.
5. I have gone through the record and rules produced by the learned counsel for the petitioners who had placed much stress on the rules regarding grace marks, re-checking and one chance for improvement of division and also that result through Gazette Notification that any error or omission is subject to recertification. The relevant rules are quoted below:- ' Rule 17: ' A candidate who has passed the Bachelor's Degree Examination in the third or second division of this University may be permitted to improve his/her division from 3rd to 2nd and 2nd to 1st by availing one chance as a private or a regular candidate. The candidate may be allowed to improve the division in Part II or Part I and Part II together as a private candidate. Such a candidate if he/she improved his/her division shall be eligible to receive a new Degree. The result of such a candidate will be declared only if he/she secured a second or a first class.
' Such candidates will have one chance to re-appear for improvement of division in the syllabus in vogue of the relevant examination, within two consecutive examinations.
' Rule.19:
(i) The benefit of grace marks/condonation marks of up to one per cent of the total number of marks allotted for an examination subject to a maximum of ten marks, should be given to a candidate who, but for the benefit, would have failed in the examination. These marks may be distributed over the various units of passing The benefit of fraction of marks should go to the candidate.
' The benefit of grace marks/condonation marks of up to one per cent. Of the total number of marks allotted for an examination subject to a maximum of five marks, should be given to a candidate who, but for this benefit, would have been placed in a lower division in the examination.
(iii) Should a candidate desire not to avail of the concession of grace marks, he/she may be allowed to apply for withdrawal of such concession within a period of 30 (Thirty) days after the declaration of the result. This option once exercised by the candidate shall, however, be fmal.
(iv) The grace marks shall be admissible in all the University Examinations except the M.Phil., Ph.D.
And Medical Examination.
' Rule 23: ' Only those candidates shall be eligible to apply for re-checking who fail in the subject by not more than 5 marks.
' Rule 24: ' The re-checking will be done in the presence of Vice-Chancellor and Controller of Examination by the Principal/Head of the. Department concerned. The Principal/Head of the Department may co- opt if necessary a Faculty member, who is a teacher of the subject.
' Rule 25: ' The Principal/Head of the Department shall satisfy himself that:- All questions have been marked.
' The total of marks allotted to individual questions are correct.
' The Answer book belongs to the candidate by comparing it with his/her handwriting in the admission form etc.
(iv) The marks allotted to the candidate are conformity in with the marking of the Examiner in other cases.
' Rule 26: ' In case answer to a question has been left unmarked or the making of the script in the opinion of the Principal/Head of the Department is at variance with the general standard of marking of the examiner the script will be referred back to the examiner alongwith the comments of the Principal/Head of the Department for reconsideration whose decision shall be final and the result of the candidate may be revised in the light of the new awards with the approval of the Vice- Chancellor. While forwarding the script of the candidate to the examiner the scripts of candidates on whom the opinion of the Principal/Head of the Department is based would also be forwarded to the examiner for reference.
6. In the first instance the respondent was declared successful in 2nd division as per Gazette Notification dated 31-7-1989 and accordingly issued a Provisional Certificate but when he applied for detailed Marks Certificate which was accordingly issued he was astonished to see that he has been shown failed in previous Paper IV. In this regard the contention of the petitioners is that the error so occurred in the Gazette Notification was a typing mistake. The respondent thus was well within his rights to apply for re-checking of his paper. The petitioner has although applied for re- checking of his paper which was not allowed in view of bar contained in Rule 23 quoted above. But it is a case of its own nature and rule 23 would not be applicable to the case in hand because the respondent was declared successful in the first instance but later on shown failed. It will not be out of place to mention here that result of M.Sc. Geography previous was announced on 3-7-1989 while that of fmal was declared on 31-7-1989 as is clear from C-1 and C-12 respectively. I am, in the circumstances, failed to understand that the error so caused corrected through a Notification dated 5-8-1989 but it is in the evidence of the petitioner that the error was detected when the respondent applied for the_issuance of Detailed Marks Certificate which was issued on 9-11-1989.
In the said D.M.C. The respondent was shown to have secured 687 marks which were crossed and substituted with the works "D.N.I.". A candidate should not be deprived of rechecking the paper in like situation. In this regard support is sought from the case of Board of Intermediate and Secondary Education, Lahore and another v. Mst. Salma Afroz and 2 others (PLD 1992 SC 263) wherein it has been observed that depriving a student of his right to see his paper would leave him handicapped in making out a case of criminality, perversity fraud and victimisation against the examiner followed by a judgment of this Court reported in PLD 1995 Peshawar 43.
7. To meet such like situation the rules are rather silent. In this view of the matter, I am of the opinion that it was a case of special nature, in the peculiar circumstances, rules framed for re-checking of the paper does not bar the authorities to satisfy the candidate whose precious career is involved and the bar of rechecking under the rules is not at all applicable in the case in hand. However, I may add here that the rules in such like matters require further elaboration and incorporation covering all like situations without leaving any lacuna in order to safeguard and protect the rights and interest of the students.
' As a sequel to above, I see no force in the revision petition and dismiss the same with no order as to costs.