AHMAD SUFYAN ARSHAD Versus BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, FAISALABAD

Petitioner appeared in. the F:Sc. (Pre‑Engineering) Examination Part I, Annual 1998 as a regular student under Roll No.4598 and passed the same by securing 423/500 marks. Petitioner appeared in the second part of the same Examination in the year 1999 under Roll No.30792. An unfair means case was prepared against the petitioner and the charge‑sheet duly served upon the petitioner (copy Annexure "B/1"), which stated that while appearing in the Chemistry‑II Paper in the Annual Examination, 1999 under Roll No.30792 on 13‑5‑1999, the petitioner was found in possession of illegal material. Charge‑sheet mentioned Rule 5(ii). It seems the petitioner accepted this punishment and after suffering the same, sent his application form to take the Second Part of the F.Sc. Examination held in the year 2000. The application form was accepted and Roll Number Slip No.33515 was issued. The result card (Annexure ."E'") dated 31‑8‑2000 was issued to the petitioner and the same indicated that the petitioner has passed the Part II Examination by securing 428/500 marks. However, the same card showed him absent in the part examination and, therefore, was declare "full fail aryl will appear next time in full subjects". In this Constitutional petition this part of the result surd is sought to be declared as without lawful authority.

2. It is contended that the Board acted under Rule 5 appearing at Chapter 5 in the Calendar of the Board of Intermediate and Secondary Education, Faisalabad, Volumes I and II, First Edition 1992, which enabled the Board to disqualify the candidate "from passing that particular examination and from appearing in the immediately following examination (Spring and Autumn) if the offence is intentional". The argument is that the Board could and in fact did disqualify the petitioner from the Annual, 1999 and Supplementary, 1999 Examinations and did never disqualify or cancel the result of Part 1 Examination which, in any case was never in dispute.

3. In its reply/comments, the respondent‑Board claims that impugned action is valid and has been taken under para.38 of Notification No. 1, dated 4‑2‑1998 which has overriding effect, Para, 38 reads:‑‑

4. The charge‑sheet/show‑cause notice is Annexure "B/1". It is a printed form, which reproduces the relevant rules concerning offences and punishment. It does not contain or refer to para,38. This charge‑sheet to the petitioner mentions Rule 5(ii) which conveys the message as to why action under Rule 5(ii) be not taken on account of the petitioner having been found in possession of illegitimate material while appearing in the subject of Chemistry Part II in the F.Sc. Examination under Roll No.30792. The decision of the Committee as conveyed to the petitioner is Annexure "C" and it again expressly states that:‑‑

It will be seen that at no stage the Board notified the petitioner that he should show‑cause against the cancellation of the result of Part I Examination nor in fact the Disciplinary Committee cancelled the result of the examination in which the petitioner appeared under Roll No.30792 in Annual, 1998. Petitioner appeared in Part II Examination in Annual, 1999 under Roll No.4598. Learned counsel for the petitioner is right in emphasizing upon the use of word "particular" in Rule 5(ii) The word "particular" would confine again to the examination in which the candidate was found in possession of ~illegitimate material or using other unfair means.

5. Learned counsel for the Board has argued that expression, "Examination" in Rule 5(ii) means an examination which leads to the issue of Q a certificate or degree and according to him, F.Sc. Certificate is issued on the basis of the result of Part I and Part II Examination and hence the Board could cancel the result of Part I Examination and has rightly done so. This argument cannot be accepted as the rule under examination is penal‑ in nature, it will have to be construed strictly and against the respondents. The use of the word "particular" before the expression "examination" does not support the interpretation sought by learned counsel for the Board. The argument is otherwise illogical as examination of F.Sc. Part I is not in dispute arid it has become a past and closed transaction, There does not seem to be any logic or reason that for employing unfair means in subsequent paper of Chemistry, the result of undisputed examination be also annulled. The action taken, therefore, cannot be justified under Rule 5(ii).

6. It is correct that para. 38 of Notification No.1 of 1998, Annexure "R/4" to the parawise comments, does state that for employing unfair means in Part II Examination the result of Part I Examination will be deemed to be annulled but the Board never intimated the petitioner that this action will also be taken or will be deemed to have been taken. The charge‑sheet is Annexure "B/1" and it does not mention para.38. In fact the charge‑sheet is rather sketchy and while the clerk who fills the entries in the printed. form may be familiar to the full implication of the entries, but for a student not familiar with the legal intricacies, it is difficult to understand the same. However, what is noticeable is that while Rule 5(ii) is mentioned, there is no reference to para.38. The punishment is also mentioned in Rule 5(ii) and it is so mentioned in Annexure "C" the communication of the decision, of the Committee. Therefore, subsequently it is not open to the Board to fall back upon para.38 and to extend the punishment, which was not imposed by the Disciplinary Committee. It was for the Committee to act under section 5(ii) as ,well as under para.38 and to pass order accordingly which ought to have been conveyed to the petitioner. It may also be noticed that subsequently, the petitioner's form for taking Part II Examination in the year 2000 was accepted without objection. Not only accepted, but a roll number issued and the result of Part II declared. It. was. not open to the functionaries of the Board preparing and announcing the result of Part II Examination to also hold that the result of Part I Examination stands annulled and even if they could so declare, a prior notice to that effect had to be given to the petitioner. Reliance of the learned counsel for the petitioner on Haq Nawaz v. The Province of Punjab through Secretary, Home Department, Lahore and others PLD 1976 Lah. 1013 and Board of Intermediate and Secondary Education, Lahore v. Ala‑ud‑Din and another 1972 SCMR 13 is appropriate.

7. For the above noted reasons, this petition is allowed and it is declared that in the result card (Annexure "E"j dated 31‑8‑2000 the petitioner has wrongly been shown as absent in Part I Examination. It is further declared that result of Part I Examination of the petitioner is in tact: The respondent‑Board is directed to issue the revised result in the light of this judgment within fifteen days from the‑ date of announcement of this judgment. No order as to costs..

H.B.T./A‑165/L Petition allowed.