CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, BAHAWALPUR Versus RIZWAN RASHID

1. MUHAMMAD NAWAZ ABBASI, J.- -- The petitioners, through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 have sought leave to appeal against the judgment dated 16-4-2001 passed by a Division Bench of Lahore High Court Bahawalpur Bench, in an Intra-Court Appeal.

2. The relevant facts for disposal of this petition are that respondents Nos.1 to 3 having passed Intermediate Examination, Part-I, in 1997 appeared in Part-II of said Examination in 1998. The Board of Intermediate and Secondary Education, Bahawalpur, proceeded against them for the charge of using unfair means in Part-II of the examination and ultimately through the separate letters, dated 4-11-1998 and 17-3-1999 the Board informed them regarding the imposition of penalty of disqualification from appearing in four examinations (1st Annual, 1998 to II Annual 1999). The respondents availed the remedy of appeal and revision but remained unsuccessful and on completion of period of their disqualification, submitted admission forms for appearing in the Intermediate Examination Part-II, Annual, 2000. The Board refused to entertain their admission forms and permit them to sit in part-II of the examination with the remarks that their result of part-I examination held in 1997 would be deemed to be cancelled for their non-appearance in four examinations as provided under rule 27 of the Rules for conduct of Intermediate Examination notified by the Board of Intermediate and Secondary Education, Bahawalpur, vide notification dated 8-11-1995 and that without first appearing in Part-I of intermediate examination as fresh candidate, they were not entitled to appear in Part-II examination. The act of Board of Intermediate and Secondary Education, Bahawalpur, of rejection of admission forms and the cancellation of result of Part-I examination was challenged by the respondents through a Constitutional petition in the Lahore High Court, at Bahawalpur Bench and a learned Single Judge vide judgment, dated 17-10-2000 dismissed the writ petition with the observation that in consequence to the non-appearance of the respondents in four examinations, their result of Part-I of the examination stood cancelled. The respondents being aggrieved of dismissal of their writ petition, filed an Intra-Court Appeal (I.C.A.) and the learned Division Bench of Lahore High Court, Bahawalpur Bench, through the impugned judgment allowed the I.C.A. and recalled the judgment of dismissal of writ petitions.

3. The Board of Intermediate and Secondary Education, Bahawalpur, through its Chairman and Controller of Examinations, has preferred this petition for leave to appeal against the impugned judgment inter alia on the ground that under the Rules for conduct of intermediate examination circulated vide notification dated 2-11-1995 (as amended) intermediate examination is held in two parts i.e. Part-I for the first year and Part-II for second year and disqualification of a candidate for a period of two years from Part-II of examination in consequence to the disciplinary action shall also be applicable to Part-I of the examination by virtue of rule 27 of the (ibid) Rules. The learned counsel argued that notwithstanding the reason for non-appearance of a candidate in four examinations his result as a whole shall be cancelled and he would not be entitled to appear in Part-II examination without first appearing as a fresh candidate in part-I of the examination. The learned counsel has contended that while reading rule 27 with rules 18 and 25 of the above Rules the accumulative effect would be the cancellation of result of both parts of the examination and it is necessary for the candidate to appear again in Part-I examination. Rule 27 of the above rules provides as under:--

4. The plain reading of the rule would show that if a candidate after passing Part-I examination, does not voluntarily appear in part-II examination for a period of two years, his result of Part-I, examination shall be deemed to be cancelled but this rule does not as such suggest its application in a case in which a candidated due to the disqualification, is restrained by the Board from appearing in the examination. The order by virtue of which the respondents were debarred from appearing in four examinations, is read as under:--

5. Rule 10(vi) of Chapter 6 (Conduct of Examinations) of the Calendar of Board of Intermediate and Secondary Education, Bahawalpur referred therein, provides as under:--

10. A candidate may be disqualified from passing the particular examination and from appearing in the immediately following three examinations (Spring and Autumn) if he is found guilty of.

6. .

(vi) Substituting in the whole or a part of an Answer Book or a Continuation Sheet by an Answer Book or a Continuation sheet not duly issued to him for the examination.

7. The above rule relating to the old system of examinations, would not as such be applicable to the parts system of intermediate examination which has been introduced through the separate rules notified vide notification dated 8-11-1995, therefore, notwithstanding the fact that the final result in parts system of intermediate examination is compiled on the basis of result of both parts and pass certificate is issued as provided under rules 18 and 25 of the said Rules, the disqualification mentioned therein would not be read in rule 27 (supra) which is entirely independent and has no nexus either with rules 18 and 25 of the (ibid) Rules or with rule 10(vi) Chapter 6 (Conduct of Examination) of the Calendar of Board. There is a clear distinction between the wilful non-appearance in the examination as provided under rule 27 and non-participation in the examination under the compelled circumstances, therefore, the said rule would not be invokeable in a case in which the non-appearance of a candidate is not voluntary.

8. We have noticed that rule 18 of the Rules for conduct of intermediate examination under parts system is related to the disqualification of a candidate as a result of use of unfair means in part-I of the examination and is silent about the consequence of disqualification as a result of disciplinary action for use of unfair means in Part-II examination. The said rule rather provides that a candidate of part-II examination (regular or private) if is facing a complaint of use of unfair means, will be dealt with under the relevant rules and the learned counsel for the Board has informed us that no other rules were available to deal with such cases. It is cardinal principle of interpretation of statutes that law which touches upon the rights of the subjects must be construed strictly and nothing should be deemed or presumed in the said law unless it is covered through the express words and a punitive provision as compared to the permissive provisions must be construed liberally so as to lean towards the beneficial interpretation.

9. There can be no cavil to the proposition that a penal provision in a statute cannot be imported to another provision and attracted unless it is specifically made applicable and in any case if there are two interpretations, the interpretation favourable to the subject should be accepted.

10. Following the above said principle and keeping in view the beneficial interpretation, the imposition of the penalty to the respondents provided under rule 27 of the Rules in question, would be unreasonable and unjust, therefore, no such construction can be placed on the said rule by implication.

11. Learned counsel has informed us that under the orders of High Court, the respondents were allowed to appear in Part-II of the examination and their result was being withheld due to the pendency of this petition. This being so, the equity would not permit to push the respondents back to the position prior to 1997 as in such eventuality, they will be losing another couple of years of their educational career. We, therefore, without further dilating upon the legal issues raised before us, while maintaining the judgment of the High Court in Intra-Court Appeal dismiss this petition. Leave is refused.

12. M.H./C-63/S Petition dismissed.