1. According to the averments made in the petitioner, the petitioner is a regular student of Divisional Public School, Lahore. He appeared in the Intermediate Examination for F.Sc. Pre-Engineering under Roll No.07543 conducted by the respondent-Board. According to his claim, one clerk of the school harboured a personal grudge against the petitioner as the petitioner's father who is a Joint Director Anti-Narcotics Board, Lahore suspected the clerk to be involved in illegal business of narcotics. It is his case that due to mischief of the said clerk, a case of unfair means was prepared against the petitioner. He was, however, exonerated on 22-1-1996. In spite of exoneration, the result was not declared/communicated to the petitioner and on contact, the Board informed the petitioner that the result card had been sent to school. On 24-3-1996, the petitioner came to know from the clerk of the Board that the petitioner was failing in the subject of Chemistry. On the same date i.e. 24-3- 1996, the petitioner deposited his admission form for appearance in the ensuing fresh examination in the subject of Chemistry. On 2-4-1996, the petitioner received two letters from the Board. By first one, the petitioner was called upon to send a photograph as well as Rs.1,260, the deficient examination fee and by the second, the petitioner was asked to submit the result card of previous examination. The petitioner reverted to the Board and informed that the petitioner has not received any result card. Upon this, the petitioner was informed that his result card was despatched to his school on 14-2-1996. He was further informed that he (the petitioner) could not take ensuing examination but will have to wait for the annual, 1996 and that the deposit of the amount made on 24-3-1996 was beyond time. On 4-4-1996, the petitioner was again intimated that provisional roll number has been earmarked for him and that he should produce the result card. The petitioner again asserted that he did not receive the result card. However, after much ado, the college/school authority delivered him the result card on 5-4-1996. The Board refused to receive the result card on the ground that the date for submission of the relevant documents for appearing in the examination was over much earlier, the last being 5-3-1996. On 9-4-1996, this petition was taken up in motion. The same was admitted to regular hearing on 10-4-1996 and vide order passed on Civil Miscellaneous No.1/1996, the petitioner was directed to be issued the roll number for taking the examination which was scheduled for 13-4-1996. It was clarified that the taking of the examination and its result was subject to the final decision of this writ petition. I am informed that the petitioner has since taken the examination but the result is not being declared due to the pendency of this writ petition.
2. 2.In the report and parawise comments submitted on behalf of the Board under the signature of the Deputy Controller Examination, the position taken is that the last date fixed for receipt of admission form with triple fee was 5-3-1996 and since the petitioner applied for and paid the dues much after, the petitioner could not be permitted to 'take examination as the Board was not to be blamed if the petitioner did not receive the result card in time. It is urged that the fault is really that of the petitioner or his school/college for which the petitioner has to take the blame and not the Board; It is further urged that the Rules of the Board are as much binding on the Board as on the petitioner and that in no case the date for receipt of the admission form can be relaxed.
3. 3.In support of. The petitioner, learned counsel has relied on Regulation No.10 contained in Chapter No.3 of the Board of Intermediate and Secondary Education, Lahore. Regulations to contend that the Regulation enables - the Chairman of the Board to pass an appropriate order in cases of hardship. It is urged that in the circumstances of the case even the petitioner is not to be blamed as he was not delivered the result card by the school/college and as such the petitioner's case is that of hardship, calling for exercise of power by the Chairman under Regulation No.10. It is further contended that in any case, under Rule 21(5) of the Rules for Intermediate Examination appearing in Chapter No.2 "if the result of a candidate is declared late, except for reason of any default on his part, and the candidate has to re-appear in a subsequent examination, the admission form and the prescribed fee of such a candidate for that examination may be accepted without the payment of late fee within 15 days' from the date of declaration of his result or the date fixed for submission of forms and fees without late fee, whichever is later." It is pointed out that on its own showing the Board sent the result card of the petitioner on 14-2-1996 anal. The petitioner has a right to re-appear in the subsequent examination within 15 days from this date without payment of late fee and with double fee after 15 days thereafter and on payment of triple fee after further period of 15 days. According, to the calculation of the learned counsel, the forms submitted on 24-3-1996 with triple fee will be deemed to be within time. On the contrary, learned counsel for the Board has opposed the contentions by urging that if once the Chairman exercises his discretion under Regulation No. 10, it is likely to open a flood-gate of similar cases. He has further relied on (1984 SCM R 433) Chairman, Board of Intermediate & Secondary Education, Lahore and another v. A.I Mir to contend that the Supreme Court of Pakistan in the given facts of that case accepted the interpretation placed by the Board on Regulation No. 10. He has reiterated the stand taken in the parawise comments that since the fault in this case is not that of the Board, therefore, the Chairman's refusal to act under Regulation No.10 cannot be said to be either arbitrary or unreasonable.
4. 4.For the purposes of appreciation of rival contentions Regulation No. 10 is hereby, reproduced below: "Notwithstanding anything to the contrary in the regulations 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; '
5. 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. "
6. The bare reading of the abovementioned regulation makes it clear that the framer has inserted the same to cater to exceptional situation of hardship. Once a case of hardship is shown to exist, then the Chairman "may pass such orders as he may deem necessary to relieve that hardship." It will further be seen that the Chairman can act under this Regulation, "notwithstanding any thing to the contrary in the regulations and rules. " The power, therefore, is over-riding and the Chairman has not been shackled to the provision of other regulations and rules. The only pre-condition for exercise of his jurisdiction under this regulation is his own opinion that a case of real hardship due to causes beyond the control of a student or a candidate exists. From what has been stated in the parawise comments and in the arguments advanced by learned counsel .For the respondent- Board, it seems the learned Chairman feels himself bound by the other regulations and rules. The wording of the regulation is to the contrary. It is repeated that under Regulation No.10, the Chairman can act contrary to the other regulations and rules provided the pre-condition for exercise of the power under Regulation No.10 is made out. It is also clear that the refusal to act under Regulation No. 10 on the apprehension that this will open up a flood-gate of such cases is not relevant to Regulation No. 10. The Chairman A is obliged to examine each and every case of hardship on its own merit. The power granted cannot be destroyed on the apprehension, such as has been expressed by the Chairman. This would negate the very purpose of conferment of power.
7. 5.The judgment of the Supreme Court of Pakistan cited by the learned counsel for the Board is distinguishable as in that case the rechecking of answer sheet of the candidate was in question.
8. The Supreme Court of Pakistan held that under proviso of this regulation, the Chairman was prohibited from altering the award of marks or his result and that in view of the proviso the High Court could not have issued the writ. The facts in this case are altogether different: As noted, the undisputed facts in this case are that the Board claims to have despatched the result card on 14- 2-1996 while the claim of the petitioner that in , fact he was delivered the card by the college authorities on 5-4-1996, has not been rebutted. The error in the office of the college may be honest or designed to pester the petitioner, as claimed by him. The question as who really is to be blamed, is not very material. The core question is whether a student or a candidate has suffered hardship or not. Naturally if he has suffered it on his own or it is because of his act that he has landed into hardship or the same is due to his negligence or it is one he could have avoided by exercise of due diligence, the Chairman may not be inclined to exercise the power in favour of the student under Regulation No.10. However, if as in the present case, the hardship has occurred on account of factors beyond the control of the student/examinee, he would have made a case for passing of relieving order as contemplated in Regulation No.10. Since the factual claim that the result card was in fact delivered to the petitioner on 5-4-1996 has not been denied, I find that it is a case where the petitioner has suffered hardship for no fault of his. In all fairness, the Chairman ought to have exercised the power under Regulation No. 10. The view of the Chairman is rather narrow and purely administrative although the very nature of power under Regulation No. 10 calls for parental and benevolent exercise of the same.
6. For the above reasons, I would declare the refusal of the Chairman to relieve the petitioner from hardship as without lawful authority and of no legal effect. The petitioner shall be taken to have duly taken the examination under the order of the Court and the result of the same shall be declared within two days from today. In the circumstances of the case, the parties are left to bear their own costs.