KHALIL-UR-REHMAN RAMDAY, J.---This petition by the Board of Intermediate and Secondary Education, Faisalabad, is directed against a judgment of the Lahore High Court passed in Writ Petition No,18204 of 2000.
2. Hafiz Ahmad Safyan Arshad respondent appeared in the 1st Part of the F.Sc. (Pre-Engineering)
Examination held by the petitioner-Board in the year 1998 and passed the said part of the said F.Sc.
Examination. In the year 1999 he appeared in the 2nd Part of the said examination and while attempting the Chemistry Paper on 13-5-1999 he was found to be in possession of illicit material which was, prima facie, an unfair means to pass the said examination. He was consequently charge-sheeted through a notice dated 10-6-1999 and on being found guilty as a result of the requisite inquiry, he was, through an order dated 26-8-1999, debarred from appearing in the next two examinations by way of punishment under rule 5(ii) of Chapter 6 of Volume II of the Calendar of the Board of Intermediate and Secondary Education, Faisalabad. The appeal filed by him was dismissed through an order dated 8-10-1999.
3. After the expiry of the disqualified period, the respondent submitted an application for re- attempting the 2nd Part of the F.Sc. Examination to be held in the year 2000. This application was entertained by the Board: a roll number was duly issued to the respondent; he took the said examination and was declared to have passed the same with 428/500 marks. However, the same result card showed the respondent as absent in the Part I Examination and he was resultantly declared "FULL FAIL" and was asked to appear next time in all the subjects. It was this part of the declaration which was questioned by the respondent before the Lahore High Court through the abovementioned Writ Petition No,18204 of 2000.
4. In response to the notice in the said writ petition, the Board explained that the result of the Part I Examination of the respondent had been annulled on account of para. 38 of the Condition issued by the Board` under section 10 of the Punjab Boards of Intermediate and Secondary Education Act No, XIII of 1976 relating to the Intermediate Examination and which condition provided that where a candidate having passed theist Part of the Intermediate Examination was found guilty of using unfair means in the 2nd Part of the said examination and was punished therefor, then the result of such a candidate of both the parts i,e, Part 1 and Part II of such an examination would stand cancelled.
5. The learned Single Judge in the Lahore High Court allowed the said writ petition and declared that the respondent had been wrongly shown as absent in the Part I of the F.Sc. Examination in the Result Card dated 31-8-2000 and that the respondent's result of the Part 1 Examination was intact and consequently the Board was directed to issue a revised result card in terms of the above declaration essentially on the ground that since the case in hand was one of imposition of penalty, therefore, the relevant provisions had to be strictly construed and followed; that it was neither logical nor reasonable that for employing unfair means in a subsequent examination, the result of an earlier examination which had become a past and closed transaction should stand annulled; that the charge-sheet issued to the petitioner carried no reference to the above-mentioned para. 38; that when the candidate submitted an application for re-taking Part-II Examination in the year 2000, the petitioner's application was duly entertained and he was not only issued the requisite roll number but had even been permitted to take the said examination and it was, therefore, not open to the Board to subsequently declare that he could not appear in the Part II Examination and that he was required to appear in both the Parts of the F.Sc. Examination and finally that no notice had been issued to the respondent regarding the annulment of his result of the 1st Part of the F.Sc.
Examination.
6. The learned counsel for the petitioner as also the learned counsel for the respondent-caveator have been heard at some length. It may be mentioned here that besides reiterating the points which had found favour with the learned Single Judge in support of the respondent's case, the learned counsel for the caveator further added that the conditions which carried the above- noticed para. 38 were part of a notification which notification was required to be published in the official Gazette in terms of the General Clauses Act and since the said notification had not been so published, therefore, the said para. 38 had no existence in eye of law.
7. The crucial question which requires determination and on which hinges the fate of this petition is as to the exact nature of the Part I of the F.Sc. Examination.
8. To pass the F.Sc. (Pre-Engineering) Examination, a candidate is tested in seven subjects i,e, Urdu, English, Islamyat (Compulsory), Pakistan Studies, Physics, Chemistry and Mathematics. Except Islamyat and Pakistan Studies, all other subjects consist of two papers. As per the earlier practice a candidate was required to take the Intermediate Examination at the end of a term of two years.
This used to be a composite examination where the examinee was examined in all the seven subjects in one go. In the year 1996, however, fresh rules were framed which introduced the "Parts System" for taking the Intermediate Examination. This system finally enforced through notification dated 4-2-1998 issued under sections 10 and 21 of the Punjab Boards of Intermediate and Secondary Education Act No, XIII of 1976, envisaged taking of the Intermediate Examination in Parts i,e, Part I at the end of the 11th Class and Part II at the end of 12th Class. The said rules further provided that in Part I of the Intermediate Examination, every candidate shall be tested for his proficiency in the subject of Islamic Education and in Papers "A" (called Paper I) of other subjects, namely, Urdu, English, Physics, Chemistry and Mathematics and in the Part II of the said examination each candidate was to be tested in the Paper "B" (called Paper II) of the above mentioned subjects in addition to the subject of Pakistan Studies. Part I of the said examination carried a total of 550 marks while the same number of marks were reserved for the Part II of the said examination. Rule 13 of the said Rules provided that the candidates appearing in the First Part of the said will only be informed of the result of the same and no certificate of any sort shall be issued to them on passing the said Part of the said examination and further that a certificate would be issued only to the candidates passing both the Parts of the said Intermediate Examination. Rule 17 further provided that regular candidates failing in the First Part of the Examination shall be allowed to take Examination of the First Part along with the examination of the Second Part and likewise the private candidates could be permitted to take the examination of both the Parts together. Rule 18 further provided that candidates who were found guilty of using unfair means and who were disqualified for the next one or two examinations would be allowed to take the examination of both the parts together after the expiry of the disqualified period.
9. From a perusal of the above-noticed rules governing the 'Parts System' of the Intermediate Examination, the scheme which emerges is that the two Parts of Intermediate Examination are not two independent examinations and were in fact the parts, as the nomenclature itself indicates, of the same Intermediate Examination which was to be held with a gap of 12 months as compared to the earlier scheme in which the examination of the different papers of different subjects was held with a gap only of days. Therefore, we find that the view expressed by the learned Single Judge of the Lahore High Court that Part I Examination of the Intermediate examination was an independent entity was not correct and consequently it could not be said that the said part of the Examination in question, once taken, could be treated as a past and a closed transaction for all purposes.
10. We know it from rule 25 of the erstwhile Rules relating to the Intermediate Examination which were in force till 1998 that even if a candidate was found guilty of using unfair means in just one paper of any of the subjects in which he was being examined, then the whole result of the entire Intermediate Examination was liable to be cancelled and he was then required, after the expiry of the disqualified period, to take the entire examination as a fresh candidate. Therefore, cancellation of the result of the entire Intermediate Examination which examination now consists of two Parts is not a new phenomenon and since we have held that the First Part of the Intermediate Examination is not an independent entity it is and was only a part of the same examination, therefore, guilt of a candidate regarding using of unfair means in one of the papers even of the Part II Examination could reasonably lead to cancellation of the whole result of the entire Intermediate Examination including the result of the Part I of the same. Consequently, it could not be said that the result of the First Part of the Examination in question having once been declared was a past and a closed transaction which became sacrosanct and which could not be cancelled on account of a candidate found using unfair means in any of the papers of the Second Part of the same examination. This view is also strengthened by rule 38 of the Rules in question which envisages cancellation of the result of the First Part of the Intermediate Examination after a candidate was found guilty of using unfair means in the Second Part which thus could not be said to be an independent punishment and was only a consequence of the punishment prescribed for using unfair means in any paper of the said examination.
11. Having thus examined all aspects of the matter, we fiord that the I st and the 2nd Part of the Intermediate Examination are not independent examinations and are in fact the part of the same one examination; that the result of the I st Part of the Examination in question which, is taken by a candidate does not become a past and a closed transaction and does not become sacrosanct till such time that a candidate successfully clears and passes the 2nd Part also and till then the result of the 1st Part remains liable to be cancelled in terms of the above mentioned Conditions governing the taking of the Intermediate Examination. We, further find and hold that the consequences envisaged by rule 38 of the said Conditions is not an independent punishment but is only a consequence of the finding of the guilt and the result punishment of a candidate relating to any of the papers in the 2nd Part of the examination in question and resultantly it is further held that while issuing a notice to a candidate to show cause against imposition of a punishment for using unfair means in attempting any of the papers of the 2nd Part of the Intermediate Examination, it is not necessary to issue notice to him also regarding the consequent possible cancellation of the result of the 1st Part of the Examination taken by him. In this view of the matter we find that no exception could be taken to the cancellation of the respondent's result of the Part I of his intermediate examination on account of his having been found guilty of using unfair means in one of the papers of the Part II of the said examination. Needless to add here that even prior to the introduction of the 'Parts System', using of unfair means in any one paper envisaged the cancellation of the result of each and every paper of every subject i,e, the result of the entire Intermediate Examination and rule 38 of the Rules in question is, therefore, only a continuation of the same old scheme.
12. As has been mentioned above, it had also been argued by the learned counsel for the respondent that rule 38 in question was a part of a notification dated 4-2-1998 issued by the petitioner-Board and that since the said notification had not been published in the official Gazette, therefore, the said rule had no existence in the eye of law. This submission is based on a misconception' created by the petitioner-Board as the rules issued by it to regulate the taking of the Intermediate Examination in question were termed as a notification. We have gone through section 10 of the Punjab Boards of Intermediate and Secondary Act No, XIII of 1976 and find that the said provision which empowered the said Board to frame rules to hold and conduct the examination did not provide that the rules in question would be enforced through a notification.
Since promulgation of the rule in question through a notification was not a requirement of law, therefore, the provisions of the General Clauses Act prescribing publication of such a notification in the official Gazette were not attracted in the present case. The word "Notification" used by the petitioner-Board is a nomenclature coined by the Board itself and has no legal status. Therefore, the submission of the learned counsel for the respondent regarding the non-publication of the said rules in the official Gazette is fallacious and thus without any merit.
13. As has been mentioned above, it was through an order dated 26-8-1999 that the respondent had been found guilty of using unfair means for passing Paper II of the subject of Chemistry. By way of punishment he was debarred from taking the next two examinations. As a result of his conviction and punishment and on account of the above-noticed rule 38 which we have held to be a reasonable, lawful and a valid rule, the result of the respondent's Part 1 Examination stood cancelled. In this view of the matter, no official of the petitioner-Board was competent to undo the above mentioned legal and lawful consequences of the respondent's above-noticed conviction and punishment. Therefore, entertainment of the respondent's application and issuance of a roll number to him to take only the 2nd Part of the Intermediate Examination was an unauthorized and an illegal ministerial act which was of no consequence in law. Thus the submission that since some clerk in the petitioner Board had entertained the respondent's application to take only the 2nd Part of the Intermediate Examination and since even a roll number had been issued to him for the purpose, therefore, the respondent stood absolved of the consequences of rule 38, is a submission without any merit.
14. It was finally prayed by the learned counsel for the respondent that some leniency be shown in the matter as the respondent had already joined a professional college as a result of the acceptance of his writ petition by the Hon'ble High Court and that setting aside of the said impugned judgment of the High Court would have rather serious consequences on his future career.
15. The impugned punishment awarded to the respondent had been annulled by the High Court not on account of a finding that he was not guilty of the conduct alleged against him but on the ground of the legal lacunae which have not been found tenable by us. The guilt of the respondent in using unfair means to pass the Chemistry paper in question, as found by the petitioner-Board, stood affirmed even by the learned High Court. We have given a serious thought to the above- noticed submission of the learned counsel but find that showing any leniency to a student found guilty of using unfair means to pass an examination would only encourage unscrupulous students to adopt such-like means for getting through the examinations. We may add that it is the leniency shown to such-like young men in the past which has eroded and destroyed the sanctity and the image of our system of examination. Therefore, we feel compelled not to show any sympathy to the respondent on account of his above-noticed conduct.
16. In view of what has been noticed above, this petition is converted into an appeal which is allowed as a result whereof the impugned judgment dated 21-12-2000 passed by the Hon'ble Lahore High Court in Writ Petition No,18204 of 2000 is set aside. There shall, however, be no orders as to costs.