' The facts which form the background are that the petitioner passed her F. Sc. (Pre-medical)
Examination held by the Board of Intermediate and Secondary Education, Lahore (hereinafter called the Board) in the Spring of 1976, and obtained 594 marks out of 1000 marks, and was placed in Grade 'C'. She was awarded Grade 'B' on the basis of internal assessment made by her College, i,e, Kinnaird College, Lahore. She applied for admission to the Medical Colleges in the Punjab, for M.B., B.S. Course, but was not invited for interview. On inquiry she discovere that she was being considered ineligible for admission and was, therefore, not going to be called for interview. She thereupon addressed a letter, dated 29-10-1976, to respondent No,
1. The Chairman, Section Committee, requesting that her merit be worked out not only on the basis of the marks obtained by her in the F. Sc. Examination held by the Board, but also on the basis of the marks awarded to her in internal assessm ent made by her Educational Institution. She urged, in short, that her eligibility to admission in a Medical College be adjudged not only on the basis of the marks obtained by her in the F. Sc Examination, but in conjunction with the marks obtained by her as a consequence of the internal assessm ent. No reply, however, was given to the said letter. It may be mentioned that the petitioner had also earlier addressed to respondent No, 1 a letter on 26-10-1976, wherein she bad represented that although she had been awarded 594 marks by the Board in the F. Sc. (Pre- medical) Examination, she was entitled to the addition of 20 marks on the basis of the certificate issued tey the National Cadet Corps on account of having completed training with the Women Guards and furthermore she was entitled to another five marks for haying obtained First Division in the Matriculation Examination. The total marks for the purposes of admission to the Medical College thus came to 594+20+5-619. The basis of her request for addition of 20 marks was that section 35(c) of the National Guards Act, 1973 (Act LXI of 1973) (hereinafter called the Act of 1973), as amended by the National Guards (Amendment) Ordinance, 1975 (Ordinance IV of 1979- hereinafter called the Ordinance of 1975-provided that for the purpose of admission to any institution of advanced studies a girl student who has successfully completed the requisite training shall be awarded twenty marks in addition to the marks obtained by her in the Examination held for the purpose of the admission. The petitioner claimed that she could not be deprived of the credit of 20 marks for her having completed the training merely because she had obtained 594 marks in the F. Sc. Examination, Le. 6 marks less than 600 marks and not placed in the First Division, as a result of the award of marks by the Board. So far as the addition of the other 5 marks was concerned, she was entitled to it on account of the provisions of the. Prospectus, whereby the candidates passing the Matriculation Examination in the First Division were entitled to the addition of five marks for working out their merit. Thus, her case before the Selection Committee was that for the purpose of admission she was entitled to be considered as having obtained 619 marks instead of 594 marks, and furthermore, her eligibility for admission was to be worked out not only on the basis of the marks obtained by her in the F. Sc. Examination, but also in conjunction with the marks obtained by her from her Educational Institution as a consequence of internal assessment.
2. The case of the Selection Authorities is that he petitioner was not called for interview as she did not qualify on merit. The merit of a candidate for admission to the First Yea KB., B.S. Class is worked out on the basis of the marks obtained in the F. Sc. Examination, held by the Board, and not according to the testimonial issued by the Head of the Institution. It is admitted that the petitioner was to be given 20 marks for having completed Women National Guard Training and S marks for passing the Matriculation Examination in the First Division, and accordingly, her adjusted marks will be 594+20+5=619. However, she cannot be considered for admission along with the other candidates placed in the First Division in the F. Sc. Examination (i,e, persons obtaining 600 or more marks) as she has secured Second Division marks in the F. Sc. And can be considered for admission along with the Second Divisioners, according to the Prospectus of the Medical Colleges.
It is further stated that in any case the last candidate of Lahore Division who is being selected in any Medical College of the Punjab has 624 adjusted marks and, therefore, the petitioner has no chance for admission. It is also submitted that the Grade obtained by a candidate in the internal assessm ent is not considered for the purpose of working out merit for admission to the First Year M.B., B.S. Class but the merit is worked out on the basis of the marks obtained by the candidates in the F. Sc. Examination of the Board and the award of the marks for which provision is specifically made in the Prospectus.
3. Two points thus arise for consideration in this case. First, whether a candidate who has obtained less than 600 marks in the F. Sc. (Pre-medical) Examination and is considered to have been paced in the Second Division can be considered for admission along with the candidates obtaining 600 marks or more in the said Examination and placed in the First Division, although after adjustment of marks his/her total exceeds 600 marks, and, secondly, whether the merit of a candidate is to be determined on the basis of the marks obtained in the F. Sc. Examination held by the Board, or whether it must be determined in conjunction with the marks obtained in the internal assessment of the candidate's Educational Institution.
4. It is a common ground that the rules relating to selection and admission to Medical Colleges in the Punjab are contained in paras. 27 and 28 of page 14 of the Prospectus of the Government Medical Colleges in the Punjab for the year 1975-76, issued by the Health Depaitment, Government of the Punjab. These rules are reproduced hereunder for the purposes of reference :- ""27. Selection and admission will be made strictly on the basis of merit of F. Sc./B. Sc."
' The criteria for admission shall be in the following order 1- (1) F. Sc. (Medical Group) First Division.
(2) B. Sc. (with F. Sc. Pre-medical) First Division.
(3) B. Sc. (with F. Sc. Pre-medical) Second Division.
(4) F. Sc. (Pre-medical) Second Division.
28. A candidate will be considered who has passed in the first division, if he has obtained 60 per cent. Or more of the total marks and in the second division if he has obtained 45 per cent. Marks.
Marks given by the University cannot be altered by reducing the marks as it alters the division, viz. If a student obtained 6C0 marks in the second attempt, reduction of 5 (five marks) will not change division."
5. The rules for working out the merit of candidates have also been laid down in the Prospectus.
Curiously, the para. Dealing with this matter Is also numbered as 27 and is reproduced on page 15 of the Prospectus. This rule, to the extent relevant, is reproduced below i- "27. The following marks shall be added or deducted from the total marks of the candidates in order to prepare the final merit list :-
(a) Add 5 marks if the candidate has passed Matriculation Examination in First Division and in the case of a candidate who has passed Senior Cambridge Examination, if the Examination is passed in Grade A (Division one).
(b) Deduct five marks for each failure in F. Sc./B. Sc.
(c) Add 20 marks for completion of National Cadet Corps Training on the production of a certificate from appropriate authority. Notes.-(i) The adjustment of marks of a candidate will be made within the Division (i,e, lst/2nd or 3rd Division as the case may be). It will not change or lower the Division of a candidate in any case if his/her marks are increased or decreased duo to adjustment.
(II) If a candidate has appeared for a second time, in F. Sc./B. Sc. Examination in order to improve his/her Division five marks will be deducted from the total of his/her improved marks.........
MO.
(iv) If a candidate passes the F. Sc. (Pre-medical) Examination in parts (First time in Non-Medical subjects and 2nd time in Medical subjects) five marks will be deducted from the total of his F. Sc.
(Pre-medical) marks.
(v) . .
6. The case of the petitioner, on the first point, is that though she passed her F. Sc. (Pre-medical)
Examination securing 594 marks, she is entitled to 5 marks under clause (a) of para. 27 (which contains rules for working out merit of candidates) as she passed her Matriculation Examination in the First Division. Further, she is entitled to get 20 marks for completion of the National Cadet Corps Training under section 35 of the Act of 1973, as amended by the Ordinance of 1975. In this way her total marks come to 619.
7. At this stage the provision of section 35(c) of the Act of 1973, as amended by the Ordinance of 1975 may be reproduced as follows :- 4435. Concession. -On successful completion of training, a person shall be entitled to the following concessions, namely t- (a)
(b) . .
(c) she shall, for the purpose of admission to any institution of advanced studies, be awarded twenty marks in addition to the marks obtained by her in the examination held for the purpose of such admission or, if no such examination is held, in the examination on the basis of having qualified in which she seeks such admission."
8. The question is whether the award of 20 marks under clause (c) of section 35 of the Act of 1973, as amended by the Ordinance of 1975, can be counted only for the purposes of adjustment within the Division, in which she has been placed as a result of the F. Sc./B. Sc. Examination, as claimed by the Selection Authorities or whether it can be taken into account also for the purpose of making her eligible for consideration for admission along with the candidates placed in the higher division, i,e, First Division.
9. A perusal of the main para. 27 of the Prospectus shows that the main criterion laid down for admission to the Medical Colleges is the marks obtained in the F. Sc./B. So. Examination, but while preparing the final merit list some marks can be added or deducted depending on the past academic record, such as the Division obtained in the Matriculation Examination or the circumstances in which the F. Sc./B. Sc. Examination was completed, i,e, whether it was cleared in the first or second attempt, or whether it was cleared in one-go or in parts. However, the contents of the provision of clause (c) of para. 27 (reproduced at page 15 of the Prospectus) is based on altogether different considerations. Thereunder, addition of 20 marks is required for completion of the National Cadet Corps Training on the production of a certificate from the appropriate authority.
This clause has obviously been inserted in the Prospectus to fulfil the demands of the statute, namely, the provision of clause (c) of section 35 of the Act of 1973, so as to bring it in conformity with the demands of that law. Thus, whereas all other provisions of the para. 27 (reproduced at page 15 of the Prospectus) are made by the rule-maker in the exercise of its rule-making authority, the provision of clause (c), even though contained in the prospectus, is not a provision laid down by the rule-making authority, but is in effect a provision enacted by the statute maker and stands on a far higher and enjoys a far superior status than that of rules simpllciter. Thus, while clauses (a) and (b) of para. 27 (reproduced at page 15 of the Prospectus), which have been made by the rule- making authority, can be controlled by the explanations furnished in the various "notes" attached to the said para. And reproduced above, in so far as both clauses (a) and (b) and the "notes" attached thereto have been issued by the same authority and are of the same status this is not true of clause (c). The said clause cannot be controlled by the aforesaid "notes" because it is actually a reiteration of the statutory obligation and would be binding on all, irrespective of the fact whether it was incorporated in para. 27 of the Prospectus or not. Consequently, the provisions of clause (c) cannot be controlled or whittled down by any subordinate authority, such as the maker of the Prospectus, namely, the Government of the Punjab.
10. It is obvious that the Legislature in its wisdom has considered it fit to give a concession to persons who complete National Cadet Corps Training and this concession is granted for the purpose of admission to any institution of advanced studies by the award of 20 marks in addition to the marks obtained by the candidate in the Examination held for the purpose of such admission.
It is not denied that the Medical Colleges are institutions of advanced studies and that the F. Sc./B.
So. Examinations arc held for the purpose of admission to such Colleges. The basis for denying the concession to the petitioner that as the addition of 20 marks will have the effect of altering her Division and that this cannot be allowed in view of the provision of note (I) to para. 27 (reproduced at page 15 of the Prospectus) is untenable. The question is not of altering the Division, but of considering for admission of candidates, whose total marks after adding 20 marks become more than 600, along with the First Divisioners. The interpretation placed by the Selection Authorities not to treat the adjusted marks obtained by the petitioner as entitling her to compete for admission along with the First Divisioners has the effect of whittling down the advantage allowed by the statute which is in general terms and applicable in all situations. Moreover, the concession is not confined to admission to Medial Colleges only, but is applicable to all institutions of advanced studies. Thus, the provisions of the Prospectus of the Medical Colleges, which have only the status of rules, cannot make it nugatory. Consequently, note (i) of para. 2 of the Prospectus for working out the merit of candidates for admission must be read subject to the provision of clause (c) of section 35 of the Act of 1973, as amended by the Ordinance of 1975, with the result that the said "note" shall be construed to mean that though the addition or deduction of marks may not change the Division of a candidate if his/her marks are increased or decreased due to adjustment, yet if by the increase of 20 marks allowed by the provision of section 35(c) of the Act of 1973, candidate obtains 60 per cent. Or more of the total marks, he/she will be entitled to get admission along with the candidates considered to have passed in the First Division. Thus, I would accept the contention of the learned counsel for the petitioner that by adding 20 marks to the marks obtained by her in the F. Sc. Examination she gets more than 600 marks, Hence she is entitled to be considered for admission along with the candidates who have passed in the First Division.
11. Indirect support to the view that I have taken above is furnished by a recent decision of this Court. In Munawar All v. Secretary to Government of Punjab (1) a writ petition was filed by a candidate seeking a direction that the concession allowed under the National Guards Act, 1973 was not permissible to the respondents in so far as they had not fully complied with the conditions prescribed by the provisions of the Act and the Rules thereunder. The respondents raised an objection to the maintainability of such a writ petition. However, it was held that the writ petition was maintainable because the objection raised was by the First Divisionary, who could be considered "aggrieved persons" in case persons obtaining Second Division were preferred over them, on account of the award of credit for the National Cadet Corps Training even though the said persons had not fully complied with the provision of the Act of 1973 and the Rules framed there under. A perusal of the relevant part of the judgment shows that there was no dispute that the pet sons who were really eligible to the concession under the said Act would be entitled to it in fun measure, namely, that they could even it placed in the Second Division on the basis of the F. Sc.
Examination held by the Board, be given preference to those placed in the First Division, if by adding the marks allowed by the provisions of the Act their marks, thus computed, exceeded the marks of those who had been placed in the First Division on the basis of their result in the Examination of the Board simpliciter.
12. It may further be observed that reference to para. 28, relied upon by the Selection Authorities, while turning down the claim of the petitioner,
(1) PLD 1975 Lab. 544 ' is not relevant. The rule that the marks given by the University cannot be altered by adding or reducing the marks so as to alter the Division is correct, so far as it goes, but is not the pertinent point, because though a Division cannot be altered, yet if a candidate obtains more than 60 per cent. Marks by addition of the marks allowed under the statute, such a candidate will be entitled to be considered for admission along with the candidates who have obtained 60 per cent. Marks or above.
13. Coming to the second point, it is to be noted that a new system of internal and external assessm ent of students has been introduced with effect from the academic session 1974-76 (sic).
This change has been made in order to give effect to the Education Policy of 1972-80, framed by the Government, and according to the said Education Policy a system of continuous evaluation of progress, aptitude and problems of students by the class teachers is envisaged, In order to implement the said Education Policy the Board decided to introduce the system of internal assessm ent of students by the class teachers during the students stay in the Secondary and Intermediate classes.
14. To begin with, the internal assessment is to be based on the following three factors, which will have the weightage as shown against each
(i) Academic achievements 80%
(ii) Co-curricular activities 10%
(iii) Conduct and behaviour 10% ' The final internal assessm ent is to be in the form of a composite letter grade, i,e,. A, B, C, D or E, which each head of institution will be required to indicate in the prescribed column of the admission form of each candidate at the time of the submission of these forms for the Board's Examination. After the examination, this grade will be transferred to the final certificate to be issued by the Board to the successful candidates. This requirement has been imposed in the belief that it will enhance the authority of the teacher on the one hand and make the students regular in studies on the other.
15. The system of external assessm ent which is based on public examinations, has also been slightly modified in order to harmonise it with the above system of internal assessment. Now, the candidates, who pass the Board's examinations will be placed in the following five grades, instead of existing three divisions :-{{TABLE}} Marks Grade
1. 70% and above A representing Excellent
2. 60% and above but B ,, Very Good below 70% 3, 50% and above but Good below 60%
4. 40% and above but Fair below 50%
5. Minimum pass marks E IP Satisfactory and above but below 40%
16. The aggregate as well as subject-wise marks obtained by a candidate are shown on his certificate. The character certificate usually issued by the Head of the Institution to the successful candidate will now include the details on the basis of which the composite letter has been determined and it will form an essential supplement to the final certificate of the Board. If there is too wide a disparity between the internal and external assessment, the employer or the Head of the Institution to which the scholar goes for admission will have to apply his own criteria to find the actual worth of the person The idea underlying the introduction of two assessments is that this may also help in reducing examination malpractices.
17. In accordance with the above decision the petitioner was issued the Certificate by the Board wherein it was stated that she had passed the Intermediate Examination of the Board obtaining 594 marks out of 1000 marks and was placed in Grade 'C', and furthermore she had been awarded Grade "B" on the basis of internal assessment by the Institution concerned. It may be mentioned that on the second page of the Certificate two Tables are given, the basis of external grading by the Board is indicated in Table I, while the basis of internal grading by the Institution is indicated in Table II. At the bottom of the Tables a note is attached which reads as follows :- "Note.-This certificate is to be read in conjunction with the testimonial to be issued by the Head of the Institution, which will include details of internal assessment."
18. The Certificate issued by the Head of the Institution concerned has also been attached by the petitioner. Herein it is stated that the final assessment on the basis of internal assessment sent to the Board was as follows :- Academic Extra Curricular Conduct 51/80 8/10 8/10 ' The petitioner submits that she obtained 67% marks on the basis of her internal assessment and in so far as the Certificate of the Board is to be read in conjunction with the testimonial to be issued by the Head of her Institution, her Division was, therefore, liable to be determined by adding the marks obtained by her in the F. S. Examination, conducted by the Board and the marks obtained by her as per internal assessm ent and taking the mean of the two. The decision of the Selection Authorities in not calling her for interview, she submits, is illegal on two grounds : (i) that it did not give due effect to the 'Note' mentioned in the Certificate issued by the Board, that the said Certificate was to be read in conjunction with the certificate of internal assessment, and (ii) that no cognizance was taken of the fact that the Board bad done away with the system of awarding Divisions to the successful candidates and had introduced the system of Grading in its place.
19. In reply, it is submitted that the Selection Committee can fix any criterion which it deems proper in the matter of selecting candidates. In this behalf the Committee may or may not use any or all the information supplied by the Board on the Certificate issued by it. Furthermore, although the result declared for external examination is to be read in conjunction with the certificate of internal assessm ent, yet the two gradations are not to be merged together. Hence, neither the marks nor the grades obtained in each assessment can be added to each other ; the two assessments are indicated for giving a complete picture of the candidate and if there be a too wide disparity between the two assessm ents, a different criterion can be adopted to find the actual worth of the candidate. In this connection it is also pointed out that no certificate of internal assessment is issued to private candidates and the interpretation placed by the 'carted counsel for the petitioner that the two assessm ents are to be added and then their mean taken is unworkable in such a case.
20. I agree with the learned counsel for the respondents that the meaning of the requirement that the certificate of the Board is to be read in conjunction with the certificate issued by the Head of the Institution does not imply the merging or adding of the Grades or marks obtained in the two assessm ents. Both assessm ents are independent of each other, though they are to be read together in order to get a complete picture of the worth of the candidate. It will be entirely in the discretion of the employer or the Head of the Institution to which the scholar gc es for employment or admission to rely upon both the assessments or to rely on me of then, or apply his own criterion.
The interpretation that the two assessments were not intended to be merged together finds support even from the proposal put up to the Board in the ageada paper relating to the introduction of the system of internal and external assessments, and the following part of this paper may be reproduced below with advantage ; "In the wake of the implementation of the report of the Commission on National Education (1959), a system of "sessional marks" awarded out of 25% of the total marks allotted to each subject) was introduced at the degree level but it proved impracticable and had to be discontinued. Although it was a commendable reform in principle but it failed to achieve its objective because of the mad rush on the part of our teachers (sometime under pressure) to give the maximum number of sessional marks to their students so that when these marks were added to the external marks, the students could swore as high as possible, The present scheme avoids that situation by keeping the external assessm ent seprate from internal assessment and showing these two separately on the final certificate. If there is too wide a disparity between the two asessments; the employer or the Head of the Institution to which the scholar goes for admission will have to apply his own criteria to find the truth. This may help in reducing examination malpractices also."
21. There is also not much force in the contention that the Selection Committee was required to give some consideration to the grade obtained by the petitioner on the basis of to internal assessm ent. The Selection Committee was bound by the provisions of the Prospectus which have the force of "rules" and it cannot travel outside these provisions, unless some statutory provision demands otherwise.
22. It is, however, to be noted that the provisions of the Prospectus are now no longer in harmony with the new system of awarding Grades in the F. Sc. Examination. It will be observed that in pares.
27 and 28 (reproduced at page 14 of the Prospectus) reference is to Divisions which have now been superseded by Grades. Consequently, a new criterion will have to be laid down for determining eligibility in the matter of admission to the Medical Colleges. The change which has been introduced by the Board for evaluating the merit of the candidates cannot be ignored.
' I observe that in this writ petition the rule maker, namely, the Health Secretary, Government of the Punjab has been leap laded as respondent No,
2. Ide is, accordingly, directed to amend the Prospectus so as to give due effect to the new system of assessment of a student's merit, introduced by the Board. This should be done as soon as possible and in no case later than the beginning of the next session of the Medical Colleges in the Punjab.
23. The upshot of this discussion is that the petitioner is entitled to he considered for admission along with the candidates placed in the First Division on the basis of having obtained 600 marks or more in the F. Sc. Examination held by the Board. Respondent No, I is directed to summon the petitioner for interview and decide her case in accordance with the above declaration.
24. This writ petition succeeds in the above terms, with no order as to costs.