MUHAMMAD AJMAL Versus BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE

ABDUL SHARURUL SALAM, J. ‑The appellant appeared in F. Sc. (Pre- Medical) Intermediate (Spring) Examination, 1982. The result was declared showing him to have obtained 483 marks. He applied for inspection of his answer books. Three answer‑books in the subjects of English Paper 'A', Urdu Paper 'A' and Physics Paper 'A' were missing. On his representation, he was informed vide letter, dated 18th January, 1983 that since the scripts of three papers were not available, he may accept the marks awarded to him by the Examiners and Head‑Examiners recorded on the Award Lists and the Counterfoils, or, appear in the three subjects in the ensuing examination in view of the Board's decision, dated 10th/12th December, 1981. The appellant filed a Constitutional petition bearing W. P. No. 553 of 1983 praying that the order of the Board be declared to be of no legal effect and for a further direction to the Board to grant the appellant benefit of rule 5.13 of the Calendar of the Board of Intermediate and Secondary Education and allocate for the missing papers average of the marks obtained by the appellant in the other papers. The resp8ndent‑Board relied on the decision of the Board, dated 10th/12th December, 1981 whereby it had been laid down that if an answer‑book was lost after having been examined, then, the candidate shall be offered either to accept the marks given to him in Award list or to re‑appear in the examination. The learned Single Judge held that rule 5.13 did not apply to the facts of the case as the answer‑books were not lost after receipt by the Superintendent of Examination but after having been evaluated by the Examiners and the result of the appellant completed and announced. His case, the learned Single Judge found, fell within the decision of the Board, dated 10th/ 12th December, 1981. So holding the writ petition was dismissed on 18th June, 1983. Hence, this I.C.A.

2. Learned counsel for the appellant has contended that rule 5.13 to the following effect covers the case of the appellant :‑

"If a candidate's paper is lost after having been received by the Superintendent of the examination or by one of his Assistants and if his result in other subjects/papers entitles him to be declared successful in the examination with or without the addition of marks in the missing paper, he/she may be given an option either:‑

(i) to appear in the missing paper and the marks obtained by him/ her in that paper shall be duly entered in the Result Sheet and his/her result declared accordingly ; or

(ii) to accept award for the missing paper calculated on the basis of the average of the marks obtained in other papers by him/ her.

In case of dispute as to whether a candidate's paper was duly received or not, the findings of the Controller of Examination shall be final."

He submitted that the Controller of Examination found that the three papers of the appellant were lost and it was recommended that average marks obtained by the appellant in the other papers be offered to him. He contended that the finding of the Controller of Examination is final. As regards the decision of the Board, dated 10th/12th December, 1981, it was contended that did not amount to a rule. The learned counsel referred the rule‑making power of the Board in section 21 of the Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976). It reads as follows : "A Board may make rules consistent with this Act and the regulations to provide for :‑

(i) the inspection of institutions and the reports, returns and other information to be furnished by them ;

(ii) the conditions of admission of candidates to the examination held by it and their eligibility for diplomas, certificates and titles ;

(iii) the manner and the form in which accounts of a Board shall be maintained and

(iv) such other matters as may be required under the regulations to be provided in the rules.

It was submitted that the aforesaid decision of the Board is not covered by sub‑clauses (i), (ii) & (M) and for the application of sub‑clause (N), the rule had to be made under the regulations which regulations required to be made subject to the prior approval of the Government under section 20 of the aforesaid Act and there were no such regulations.

3. Learned counsel appearing for the Board has submitted, firstly that the rule 5.13 relied upon by the appellant did not cover his case and secondly the decision, dated 10th/12th December, 1981 amounts to a rule and is covered by sub‑clause (it) of section 21 of the aforesaid Act because it relates to determination of eligibility for diploma or a certificate in the sense that marks awarded to a student lead to either grant or withholding of a diploma or a certificate.

4. We have heard the learned counsel for the parties at length. It is unfortunate that the student's answer books were lost by the Board who was entrusted with the duty to receive, examine and keep in proper custody the answer‑books of the students. However, the contention of the learned counsel for the appellant that the appellant's case fell under rule 5.13 quoted above is not quite apt. This envisages that the answer, book is lost without having been marked, therefore, average marks obtained in other papers may be given if opted. The reason is obvious, There is no evaluation of the answer book. But if the answer book has been examined and marks awarded, there would be no justification to ignore the marks given by the Examiners and in case of higher marks on the award list obviously the student would not want lesser marks if those were the average. In the case in hand, the appellant's answer books were examined by the three separate Examiners. Award Lists and counter foils were sent by the Examiners and Head Examiners to the Board which showed how many marks the appellant obtained in the three missing papers. We have been shown the Award Lists and the counterfoils. These are in due course. There is no justification to doubt the authen ticity. The next contention of the learned counsel that the recommenda tion of the Controller that the appellant be given average marks a finding of the Controller and is final, is not quite correct because the finding of the Controller that is final is in respect of the receipt or non‑receipt of the papers of the candidate by the Superintendent of the Examination or by one his Assistants and that does not obviously relate to the recom mendation made by the Controller. The other contention that the decision of the Board, dated 10th/12th December, 1981 does not amount to a rule is not quite sound because it is not a decision in an individual case but is a decision laying down a general rule about the matter put o the Agenda as to what should be the principle for dealing with a situation where an answer‑book has been examined, marks awarded and is then lost. The generality of the decision makes it apparent that it is in the nature of a rule. Such a rule could be framed under sub‑clause (ii of section 21 of the Act afore-quoted which empowers the Board to make rule for "the condition of admission of candidates to the examination held by it and their eligibility for diplomas, certificates and titles." In order to determine the eligibility for a certificate it is open to the Board to lay down a criteria like as to how many marks are necessary for passing examination, if an answer‑book is lost after having been marked, how the matter be dealt with etc? The original rule 5.13 and the decision of the Board, dated 10th/12th December, 1981 which we find to be in the nature of a rule cater for two different situations, firstly if the answer‑book is lost after receipt by the Superintendent of Examina tion, the candidate may be offered average marks or chance to reappear because there would be no other way of determining as to how many marks the candidate would have been entitled to in the missing paper. If, on the other hand, after receipt of the answer book by the Superinten dent of Examination, it has been examined and marks awarded by the Examiner and the Examiner and Head Examiners had sent the Award lists as well as the counterfoils, and then the answer‑book is lost, the candidate is given an option to either accept the marks awarded to him or re‑appear. The reason for this is that the marks awarded to him be the Examiners had determined the ability of the candidate in the subject concerned.

5. There are two more considerations, which have been kept in view. Firstly, if the contention of the learned counsel for the appellant were to be accepted that after receipt of answer books by the Superintendent of Examination and notwithstanding the marks given by the Examiners and Award List and counterfoil sent to the Board, and the answer‑book is then lost the candidate should have an option to ask for being awarded average marks obtained by him in other papers, that will lead to opening a floodgate of malpractice and corruption because the answer‑books in which the candidates may have got lesser marks may be made to disap pear and in their place average marks obtained in other papers may asked to be added with the marks obtained in the other papers. Beside that, the efforts put in by the Examiner and the Head Examiner in evaluating the answer‑books would go waste. The second consideration has been that on the basis of the result of the Examination, same other candidate by now would have been admitted to Medical College: If the appellant's plea for addition of average marks obtained by him in other papers were to be added for the three missing papers in which he had earliest been awarded lesser marks, then his total marks may come to more than those of the candidate who had already been admitted is Medical College. No such student likely to be affected has been made a party in the appeal. No order can obviously be passed which may adversely affect an innocent person in his absence. If the increase in marks were not to have such an affect it will be futile for the appellant to ask for the increased marks because of the purpose in view which was to seek admission in a Medical College. Sheer increase in mark has not been the motive to prosecute these proceedings.

9. In view of what has been stated above, we find no force in the appeal. While upholding the judgment Single Judge, we dismiss the same but in the circumstances the parties shall bear their own costs.

M. Y. H. Intra‑Court appeal dismissed.