' MAULVI ANWAR-UL-HAQ, J.---This I.C.A. Calls in question the judgment dated 26-2-1999 of a learned Single Judge in Chambers whereby Writ Petition No,32269 of 1997 was allowed. The respondent, a student of a local college sat in the Intermediate Part I examination in the year 1996.
She was declared fail in the subject of 'Economics and under the Rules framed by the appellant Board in such an eventuality a student has to take the examination in the failed subject of Part I alongwith all the subjects of Part II in the following annual examination, which in the present case was held in the year 1997. The respondent submitted admission forms for appearing in the said annual examination in the subject of Economics Part I and all the subjects in Part II. She was allowed to do so and was allocated Roll No,15767. She did appear in the subject of Economics of Part I, but did not take examination in any of the subjects of Prat II. It is an admitted fact that she did pass the examination of Part I in the subject of Economics. Thereafter, she insisted that as, according to her, she fell seriously ill and could not appear in any subject in Part II, she be permitted to take the examination of Part H only. This request was rejected being against Rule 7 notified vide Notification No,10 of 1995, which lays down that a candidate failing in any subject in Part I shall have to appear in the same alongwith the annual examination of Part II while Rule 15 provides that no candidate will be allowed to appear only in Part I examination. The respondent challenged this action through writ petition. She also moved application (Civil Miscellaneous 2 of 1997) for interim relief. The learned Single Judge directed issuance of the result card of Part I forthwith and allowed the respondent to appear in Part II examination with single fee. This examination was held in November, 1997 and it is again an admitted fact that the respondent did pass all the subjects in the said examination. The writ petition came up for final hearing on 26-2-1999, when it was allowed.
Now this appeal.
2. Mr. Shahid Waheed, learned counsel for the appellants submits that the impugned judgment is violative of the Rules competently framed by the appellants for the Intermediate examination and applied to all the candidates without any discrimination. Mr. Muhammad Naeem Chaudhry, learned counsel for the respondent, on the other hand, supports the impugned judgment.
3. We have gone through the records with the assistance of the learned counsel for the parties. The factual position, emerging therefrom, is in accord with the narration of facts made above. We find that the impugned judgment does not tend to declare the Rules notified vide Notification No,10 of 1995 and clarified vide Notification No,14 of 1997 to be ultra vires. The learned Single Judge has reproduced the relevant Rules in the impugned judgment and the conclusions recorded therein are based on the interpretation made by the learned Single Judge in Chambers of the said Rules. It appears that the judgment is influenced by the reading of para.23 of the Rules. The learned Single Judge has found that the case of the respondent is covered by the said Rule and that the said fact entitles her to the relief prayed for by her in the writ petition. The rule is reproduced here:---{{URDU TEXT}} ' This is clear from para.7 of the judgment, which is reproduced as under:- "Petitioner's case would be covered by para.23 which stipulates that if a candidate passes Part-I but does not appear in Part II Examination, his result in Part I shall remain intact for a period of two years. This provision appears to have been added for those candidates who for one reason or the other are unable to appear may not be deprived of their success in Part I Examination. But this benefit is available for two years only and petitioner did appear within the stipulated period of two years. She, therefore, could not be denied the right to appear in Part II Intermediate Examination."
4. We find ourselves in respectful disagreement with the above interpretation of para.23 of the Rules. The said para is not to be read in isolation but is to be read alongwith other relevant paras.
Of the notification so as to read all provisions in harmony. In case para.23 is found to be susceptible to the above interpretation then it would tentamount to completely destroying the other provisions of para.7 (originally and as clarified in Notification No,14 of 1997), para.21 which requires tabulation of results on the basis of results of Part I and Part II on cumulative basis and its consequences provided in para.22 thereof. In our opinion (the only rationale behind the said para.23 is that) it caters for the cases of such candidates only, who pass the Part I Examination in one go i,e,, they pass all the subjects of Part I in a given Examination but are unable to appear in the Examination of Part H in the year following. The provision has obviously been made to enable such candidates to appear in only the Part II Examination as they are the ones who fulfil the condition for appearing only in Part II Examination and are further entitled to avail two chances to do the same.
This is why the period of two years has been provided for preserving their results of Part I, so that the result could be tabulated after the candidate had appeared in Part H Examination in accordance with the provisions of the said notification. Any other interpretation of the said para.23 would set all the provisions of the notification at naught. Resultantly, we hold that the said para.23 does not cover the case of the respondent, who admittedly failed in one subject in Part I Examination and, thus, it was mandatory for her to take the examination in the said subject alongwith all the subjects of Part II of the Intermediate.
5. Now we take up the question as to what would be the consequence or non-observation of the provisions of paras .7 and 21? The consequence would be that the concerned candidate would be declared to be fail in the entire examination i,e,, Part I and Part II. The appellants, therefore, acted in accordance with the Rules while declaring the respondent' fail in the Intermediate examination concerned and disallowing her to take only the examination of Part II.
6. The matter, however, does not end here. We find that the Rules contained in the above two notifications are silent as to a bona fide case of hardship. A situation might occur that for reasons beyond his or her control a candidate is unable to take examination in all or any of the subjects of Part H alongwith the subject or subjects in which he or she might have failed in Part I. This makes the present controversy of fact. We find that the respondent filed an application on 8-10-1997 (Annexure D to the W.P.). In fact the application was filed on behalf of the respondent by her father.
In this application, the reason given is reproduced as under:--{{URDU TEXT}} ' Another application is Annexure D/1 to the writ petition repeating the same plea in English. Both the applications were rejected by the Principal of the Islamia College, Cooper Road, Lahore, and the Controller of Examinations of the appellants respectively directing that the only way out is that the respondent should appear in Part I and Part II again. Alongwith the writ petition affidavit of the respondent as also her father has been filed and in both the affidavits (Annexures B and C to the W.P.) it has been stated that the respondent fell seriously ill before commencement of the said examination. The learned Single Judge in Chambers has observed that no counter-affidavit was filed by the appellants. We are afraid in the facts and circumstances of the present case, it was neither required nor expected of the appellants to file a counter-affidavit to the said affidavits. One thing is absolutely clear on the face of the record i,e,, the said allegation lacks material particulars:- -
(i) neither in the applications referred to above nor in the affidavits, there is any mention of the nature of illness;
(ii) there is no mention of the duration of illness;
(iii) there are no details of the medications, if any administered to the respondent during the alleged illness;
(iv) no particulars of any practitioner who might have attended the respondent are available.
Needless to add that no medical certificate has been filed on record till date; and
(v) no admission records of any hospital to which the respondent might have been admitted have been filed.
In the absence of any of the said particulars, we are of the firm opinion that the bald allegations contained in the affidavits need not have been rebutted at all. The appellants in their comments denied these allegations of serious illness by claiming lack of knowledge. Although the provisions of C.P.C., applicable to the pleadings particularly Order VIII, Rule 5, C.P.C., do call upon a defendant to make a specific denial, but at the same time the said provisions also call upon a plaintiff to give particulars where necessary. Had the respondent given some particulars and substantiated her claim by filing some medical certificate, the appellants could have been in a position to get the authenticity of the same verified and then admitted or denied the same.
7. In the present I.C.A. a detailed statement had been filed on behalf of the respondent signed by herself, her father as also her learned counsel. We find that in reply to para.4 again the same bald allegation has been repeated i,e,, she was seriously ill and again neither any particulars nor any documents have been given to enable us to adjudicate upon the sufficiency of the said cause entitling the respondent to the extraordinary relief granted to her in the impugned judgment, which prima facie is in disregard of the Rules referred to above, the vires or validly whereof has neither been challenged nor has the same been adjudicated upon in the impugned judgment.
8. We can, of course, visualize the quandary in which the respondent stands placed, but when the notification contained Rules for all the candidates and there is nothing on record to suggest that any discrimination has been resorted to by the appellants in the enforcement of the said Rules, in these circumstances, we find ourselves unable to place the respondent at an advantageous position and then those to other candidates, who are subject to the said Rules.
9. We, therefore, allow this I.-C.A. And set aside the impugned judgment. The respondent shall, however, on payment of requisite fee etc be allowed by the appellants to take Part I and Part II examination of Intermediate in the immediately following annual or supplementary examination to be held by the appellants for the said course.