1. ' TANVIR AHMAD KHAN, J.---This judgment shall dispose of Writ Petitions Nos.13022 of 1995, 4708 of 1996, 20198 of 1996, 6186 of 1997 and 9514-97 as in all these matters, petitioners who are LL.B/FEL candidates of the University of the Punjab have sought directions for the grant of grace marks.
2. These writ petitions have been placed before this Bench under the order of the Hon'ble Chief Justice in view of the fact that there are two divergent views/judgments of the learned Benches reported as Syed Muhammad Asad-ur-Rehman v. University of the Punjab etc. (1994 M LD 714) and Rao Muhammad Ashraf v. University of the Punjab (1997 CLC 43) on this issue.
3. ' Facts briefly in Writ Petition No,13022 of 1995 are that the petitioner Muhammad Asam Cheema appeared in LLB 1st Annual Examination 1992 under Roll No,3343 and failed in two subjects i,e, papers VI and VII. He appeared in those two subjects in supplementary examination, 1992 held in April, 1994 and again failed. He however, subsequently cleared the aforesaid two subjects in 1st Annual Examination of 1993 held in November, 1994. It came to the notice of the respondent University that the writ petitioner could not clear paper II for want of adequate marks so as to make up his aggregate of 45% in all. A direction was issued by the learned Single Judge on 20-2-1997 to hold special examination for the writ petitioner in paper II in peculiar circumstances of this case.
4. However, the petitioner has prayed for grant of grace marks in paper II so as to make up his deficiency in aggregate. In Writ Petition No,4708-96 the petitioner Haider Raza appeared in LLB examination of 1992 under Roll No,848 and failed in papers I and III. He again appeared in supplementary examination of 1992 under Roll No,465 in failed subjects i,e, papers I and III. He, however, qualified paper I but could not pass paper III. Again he appeared in LLB annual examination of 1993 under Roll No,745 in paper III and secured 40 marks. However, since he could not obtain the aggregate of 45 marks required under Regulation as such he was declared fail. In Writ Petition No,20198 of 1996 the petitioner Muhammad Sohail Sadiq appeared under Roll No,1741 in LLB Annual examination 1993 and failed in paper VI. He again appeared in the supplementary examination held in 1994 to clear his failed subject under Roll No,1157. He however, obtained 43 marks and was declared fail for want of aggregate marks. In Writ Petition No,6186 of 1997 the petitioner Nawazish Ali appeared in FEL Part II annual examination 1992 under Roll No,1237 in April, 1994 and failed in papers II and IV. He subsequently appeared in failed subjects and cleared paper II but failed in paper IV as he secured 37 marks. In writ petition No,9514 of 1997 the petitioner Waris Khan firstly appeared in LLB Part H examination 1995 held in January, 1996 under Roll No,74 and failed in paper H. He again took special examination of paper II held in 1996, secured 37 marks and failed.
5. ' Learned counsel in all these cases have argued that the petitioners have been declared fail only by 1 to 3 marks and are entitled to the grace marks under Regulation IV. In support of their contentions they have placed reliance upon Rao Muhammad Ashraf v. University of the Punjab (1997 CLC 43).
6. ' Learned counsel appearing for the University have controverted the stance taken by the petitioners and have stated that this concession would only be available to a candidate who appeared in the examination as a whole and cannot be extended to those who appeared in parts.
7. In support of this contention reliance has been placed upon Syed Muhammad Asad-ur-Rehman v.
8. University of the Punjab reported in 1994 M LD 714.
9. ' We have considered the contentions and have gone through both the judgments. Regulation of the University of the Punjab on which reliance has been placed underwent a change in a decision taken by the Academic Council on 30-5-1970 which was subsequently approved by the Syndicate on 21-6-1970. This, however, was notified on 12-3-1975. The Regulation 4 prior to the amendment was as under:-- ' 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 rent in the aggregate.
10. ' 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.
11. ' 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."
12. ' The amended Regulation which was notified on 12-3-1975 is as under:-- "Every candidate shall, in order to be deemed to have passed this examination (whether in May or in September) be required to obtain forty per cent of the maximum number marks allotted to each paper, and forty five per cent in the aggregate.
13. ' 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 of less. 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.
14. ' Provided also that no candidate who passes in the examination held in September shall be entitled to any prize or medal.
15. ' 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."
16. The reading of the aforesaid Regulation demonstrates that every candidate is required to obtain 40 per cent of the maximum marks allotted to each paper and 45 per cent in the aggregate. This Regulation has envisaged three situations whereby the grace marks are to be awarded. Under clause (a) of the first proviso, five grace marks are given to a candidate who fails in one paper while clause (c) would be attracted in a situation where a candidate fails in more than one paper.
17. Clause (b) of this proviso is completely different and caters for a situation where a candidate fails in the aggregate by a margin of 5 marks. However, third proviso has controlled the grant of aforesaid concession and makes it very clear that the grace marks shall not be awarded to any candidate who appears in examination in parts. It is pertinent to mention at the very outset that prior to the amendment of this Regulation the grace marks were 3 in number and there was no restriction/condition regarding its applicability. However, this Regulation under-went a change and was consciously amended by the competent authority i,e, Academic Council as well as Syndicate by application of their mind. Under the amended Regulation, the grace marks are 5 in number and its applicability has been restricted by the third proviso. This proviso is mandatory in nature and is couched in negative form. It has specifically provided that the grace marks shall not be awarded to any candidate who appeared in the examination in parts (underlined is ours). The word 'any' is of wider amplitude. Reference in this regard is made to Government of N.-W.F.P. Through Chief Secretary and another v. Muhammad Irshad and others (PLD 1995 SC 281) where it was held as under:-- "The word 'any' is ordinarily used to enlarge the amplitude of the term to which it is attached and there seems to be no reason why the expression 'any law' as occurring in Article 8(1) be so narrowly construed as to exclude from its purview a Regulation which possesses the efficacy of law in a part of Pakistan, particularly when its effect has been extended to all customs and usages which have the force of law."
18. ' Proviso in its literal meaning means a provision or condition in a deed or other writing, the clause containing any condition. In Black's Law Dictionary it is defined as under:-- "A condition, stipulation, limitation or provision which is inserted in a deed, lease mortgage, or contract and on the performance or nonperformance of which the validity of the instrument frequently depends; it usually begins with the word 'provided'.
19. ' A limitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate, or the other be exercised, unless in the case provided.
20. ' A clause or part of a clause in a statute the office of which is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of its extent.
21. ' A "proviso" is used to limit, modify or explain the main part of section of statute to which it is appended. Saginaw County TP Officers Ass'n v. City of Saginaw, 373 Mich. 477, 130 N.W. 2d, 30, 32."
22. ' In Craies on Statute Law 7th Edition it is provided that:-- "Excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment or to qualify something enacted therein, which but for the proviso would be within it; and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect."
23. ' In Dyal Singh v. Kenyan Insurance Ltd. (PLD 1955 Privy Council 4) it has been held as under:-- "A proviso may limit and severely limit the application of an enactment to which it is a proviso but it could only be held in the most exceptional circumstance that the proviso nullifies the enactment. In the present case if the enactment stands it does not nullify the proviso; it merely limits its application."
24. ' Similarly in Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and others (PLD 1965 SC 434) it has been observed:-- "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 definite clause."
25. ' The Hon'ble Supreme Court in Rafiuddin v. Chief Settlement and Rehabilitation Commissioner (PLD 1971 SC 252) reiterated that:- "The function of a 'Proviso' is to restrict limit or qualify the enacting part of a section to which it is attached but not nullify the enacting part or render it wholly inoperative. In the ease of East and West Steamship Company v. Pakistan (2) Cornelius, J, (as he then was) stated the function of a proviso as follows: "One of the plainest rules of statutory interpretation is that a proviso is to be regarded as something which excepts a particular case from a general principle. The effect of a provision is to accept something out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it."
26. ' In the case of Dayal Singh v. Kenyan Insurance Ltd. (PLD 1955 PC 4) the Privy Council stated:-- "A proviso may limit and severely limit the application of an enactment to which it is a proviso but could only be held in the most exceptional circumstances that the proviso nullifies the enactment."
27. The irresistible conclusion drawn from the interpretation of third proviso is that the grant of grace marks would not be applicable to any candidate who has appeared in the examination in parts.
28. The respective subjects in which the grace marks are claimed by the petitioners, the examination thereof was taken by them in a supplementary chance. This would clearly demonstrate that the case of all the petitioners is hit by third proviso and they would not be entitled to any grace marks in the circumstances of this case. This being the position the writ petitions having no force are dismissed with no order as to costs.