' Waqar Hussain Hashmi (hereinafter called plaintiff) appeared in the 1st Annual Intermediate Examination held in April 1975 under Roll No, 3975 as a private candidate. He sat in all the theory papers, but could not take the practicals of three subjects, viz., Physics, Chemistry and Biology as he was allegedly ailing between 11-5-1975 and 9-6-1975 during which period these practical's were held. He submitted an application to the Minister for Education praying that he may be allowed to appear in the practicals of the aforesaid subjects in the ensuing, what may be called, Second Annual/Supplementary Examination which was to be held in October, 1975. This application was marked by the Minister concerned on 26-8-1975 to the Chairman, Board of Intermediate and Secondary Education, Lahore, with the endorsement "please consider sympathetically under the relevant rules". The application was processed in the office of the Controller/Assistant Controller of Examinations. The plea of illness of the candidate was doubted by nobody. However, the Controller/Assistant Controller had his own reservations regarding maintainability of the application and ultimately, as the file shows, after discussion with the Chairman, a letter dated 10- 9-1975 was issued by the Controller of Examinations under his own signatures to the petitioner pointing out that his request being inadmissible under the relevant rules could not be acceded to.
The plaintiff, on 22-9-1975, filed a civil suit against (1) The Controller of Examinations, Board of Intermediate and Secondary Education, Lahore and (2) Board of Intermediate and Secondary Education, Lahore through Chairman, for a declaration that the refusal of the defendants to accede to the request of the plaintiff was illegal and without jurisdiction and also for a permanent injunction restraining the defendants from disallowing the plaintiff from appearing in the said practical papers as a consequential relief. The learned Civil Judge, on the pleadings of the parties, framed the following issues :-
(1) Whether this Court has no jurisdiction to try this suit? O.P.D.
(2) Whether the suit is not filed against the proper person? If so, its effect? O.P.D.
(3) Whether the defendants are justified to disallow the plaintiff from appearing in the practical examination only ? O.P.D.
(4) Whether the plaintiff has not got any vested right to appear in the practical examination? O.P.D.
(5) Relief.
' Issues Nos. 1, 3 and 4 were decided in favour of the plaintiff and against the defendants whereas issue No, 2 was not pressed and was deleted. A a result of the aforesaid, the suit of the plaintiff was decreed by the learned trial Court on 20.9-1976.
2. Even though there were two defendants in the suit but only the Controller of Examinations filed an appeal in the Court of the learned District Judge which was taken up by the learned Additional District Judge, Lahore, and was dismissed on 15-10-1976.
3. The Controller of Examinations has come up in revision against the aforesaid two judgments and decrees to this Court.
4. The first point argued by Ch. Mohammed Farooq, learned counsel for the petitioner-appellant was that under section 27 of the West Pakistan (Board of Intermediate and Secondary Education, Lahore) Ordinance XVIII of 1961 (hereinafter called the Ordinance) there was a complete bar for instituting any suit against the Board. The said section which is headed as "Bar to suits" states that "all acts done, Orders passed or proceedings taken by the Board shall be final and shall not be called in question in any Court by a suit or otherwise". He argued that in the instant case the orders impugned bad been passed by the Board and, therefore, were immune from challenge in a civil Court. The contention has no merit. On factual plane it is concurrent finding of the two Courts below that the orders were not passed by the Board, but only by the Controller of Examinations. This finding is supported by attending material and is therefore unexceptionable. It may mentioned that according to section 3 of the Ordinance, which deals with "Establishment and incorporation", "the Board of Secondary Education, Lahore, shall be reconstituted in accordance with the provisions of this Ordinance, and shall be called the Board of Intermediate and Secondary Education, Lahore.
(2) The Board shall be a body corporate and shall have perpetual succession and a common seal with power to acquire and hold property and to transfer the same and may sue or be sued by its corporate name". The constitution of the Board is contained in section 4 which shows that it consists of the Chairman, the Vice-Chancellor of the University or a University Professor nominated by him; the Director of Public Instruction, West Pakistan or his nominee not below the rank of an Assistant Director of Public Instruction, West Pakistan or the Principal of a Degree College; the Director of Technical Education, West Pakistan; one representative of the Syndicate of the University; one Principal of a College nominated by the committing authority two representatives of Heads of Intermediate Colleges elected by and from among themselves; two Headmasters or Headmistresses of schools elected by and from among the Headmasters and Headmistresses of schools; and two persons nominated by the Controlling Authority. It will thus appear that the Chairman of the Board is not the Board but only a member of the Board. The orders passed by the Controller of Examinations after discussion of the matter with the Chairman consequently are not the orders of the Board. Attention of the learned counsel was also drawn to subsection (2) of section 3 reproduced above where it was laid down that the Board may sue or be sued by its corporate name. This means that the bar contained in section 27 against the Board was not absolute and is to be read with subsection (2) of section 3, because it cannot mean that the right which was granted by the aforesaid subsection (2) was taken away by section 27 of the Ordinance.
Reading the aforesaid two provisions of law together, it will mean that where the Board has acted in excess of its jurisdiction, its action is not immune from being challenged in a Court of Law. The matter need not be proceeded with further, because, as found by the two Courts below orders in this case were not passed by the Board and even on factual plane the applicability of section 27 did not arise.
5. The next point argued was that no doubt earlier there existed a provision in the form of rule/regulation No, 25 which authorised allowing such reliefs as were prayed for by the plaintiff in case of failure of a candidate to take up examination due to illness. This rule/regulation, it was argued, was deleted somewhere in 1974 (exact date was not given) with the result that even though there was a sufficient cause for permitting the plaintiff to take up the practical examination but due to the dropping of the aforesaid rule/ regulation the said power no mere existed in the concerned authorities. The contention has no merit. Without going into the details of the aforesaid rule/regulation, the precise date of its deletion or its effect on students admitted earlier etc. The short answer can be that there still exists rule iv 10 of the Board's Calendar which is headed as 'hardship rules' and lays down that "notwithstanding anything to the contrary in the Regulation and Rules, if, in the opinion of the Chairman, there is a case of real hardship due to causes beyond the control of a student or a candidate for an examination of the Board, the Chairman may pass such orders as he may deem necessary to relieve that hardship. The orders of the Chairman, passed under this Regulation shall be reported to the Board for information. Provided that such orders of the Chairman shall not alter the award of marks, obtained by a candidate or his result, determined on the basis of that award". This rule/ regulation was wide enough to cover cases of illness and as a matter of fact in the face of this rule/regulation the earlier rule/regulation was simply a duplication and was apparently rightly dropped. The argument of the learned counsel for the petitioner pleading lack of powers in the concerned authorities, therefore, is devoid of any merit and the Courts below were quite justified in holding that on the facts and in the peculiar circumstances of this case a decree merited to be passed in favour of the plaintiff and against the defendants.
6. No other point was argued before me.
7. The result is that this revision petition has no merit and is hereby dismissed with the observation and the obvious result that the decrees and judgments of the two Courts below remain operative in the field and should be complied with by the defendants concerned.
8. It may be mentioned that during the pendency of the suit in the Court of the learned Civil Judge an interim injunction was passed by the learned Civil Judge authorising the plaintiff to appear in the practical examinations with the condition that the result should not be declared till the decision of the suit. The plaintiff then appeared in the practical examinations and after the decretal of the suit the prohibition of "not declaring the result" being no longer operative he, therefore, insisted that his result should be declared. However, by earlier orders of this Court that prohibition was allowed to continue, but by means of subsequent order dated 17-11-1976 the same was removed and the result of the plaintiff was directed to be declared and was declared on that very date. The plaintiff has taken admission in the M.B., B.S. (First Professional Class) in the Lahore Medical College, subject to the production of pass certificate which was being withheld due to pendency of this revision petition. Now that the revision petition has been dismissed the defendants should forthwith issue the requisite pass certificate to the plaintiff so that he may produce the same before the authorities concerned in the Lahore Medical College. Ch. Mohammed Farooq learned counsel for the petitioner undertook that he will communicate this direction to the authorities concerned. There shall be no order as to costs.