AHMAD LATIF QURESHI vs CONTROLLER OF EXAMINATION, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE and anothers

' Ahmad Latif Qureshi petitioner before this Court, is a student of matriculate. He appeared in 1st Annual Examination in 1993 from Divisional Public School, Model Town, Lahore under Roll No,16434 conducted by the respondents. On 28-3-1993 when the petitioner was doing his paper in Mathematics, Answer Book of the petitioner was taken into possession, by the Additional Secretary, Education, who was member of Inspection Team on the basis of the allegations that the petitioner was possessed of some objectionable material wherefrom he was copying. The petitioner was forced to leave the Examination Hall without completely solving the paper. Subsequently, the Answer Book was cancelled and the petitioner was served upon with the charge-sheet, which was replied to by the petitioner. Disciplinary Committee of the respondents after taking into consideration the charge-sheet and the explanation submitted by the petitioner directed cancellation of the aforementioned paper. Aggrieved of this order, the petitioner filed appeal before the Appellate Committee of the respondents who accepted the appeal and exonerated the petitioner. Following order has been passed by the Appellate Committee:-- {{URDU TEXT}} (Sd.) {{URDU TEXT}} ' In spite of passing of the above order as the respondent insisted that he should again appear in the said paper in next Supplementary examination on account of result whereof if he succeeds, he shall be considered to have passed the examination in parts.

2. Through this Constitutional petition the petitioner has sought issuance . Of a direction to respondents to the effect that the respondents may be directed to grant average marks in the said paper and declare his result of Matriculation examination on the basis thereof as an examination of 1st Annual Examination.

3. Ch. Muhammad Amin Javed, Advocate has appeared on behalf of the petitioner, whereas Ch. Ijaz Ahmad, Advocate has appeared on behalf of the respondents. During the course of hearing of the petition, I asked the learned counsel for the respondents on the question as to whether the petitioner could be issued a certificate of having passed the examination in the first attempt in Annual Examination instead of having passed in parts if he is declared to pass in the subject in question, in which subject he has admittedly appeared during the Supplementary examination during the pendency of this writ petition. Learned counsel for the respondents has placed on record an intimation in writing that the above request of the petitioner cannot be acceded to. The intimation furnished by the learned counsel is reproduced as under:-- "BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, ' 86-Mozang Road, Lahore ' Ch. Ejaz Ahmad, ' Legal Advisor, ' Board of Intermediate and Secondary Education, Lahore.

WRIT PETITION NO.6903/93 AHMAD LATIF QURESHI V. BISE, LAHORE.

' Kindly refer to your note dated 31-8-1993 on the above-noted writ petition.

As you have already conveyed to the learned Judge that as per Rule 9 of Chapter 5 relating to average marks, the same is not applicable in this case as no answer book was misplaced.

' Since the candidate was let off by the Appeal Committee on account of the procedural lapse in making the unfair means case against him at the level of the supervisory staff of the centre, he does not qualify for the issuance of the same roll number in the supplementary examination. His request to issue the certificate of first attempt instead of "in parts" can also not be acceded to under the rules. However, a certificate to the effect that an unfair means case was registered against him and that he was let off by the Appeal Committee on account of the non- establishment of the charges levelled against him can be issued to this candidate.

(Sd.)

(Dr. Ejaz Ahmad)."

' Learned counsel for the petitioner has vehemently argued that as the petitioner's paper was snatched and taken away by Additional Secretary Education in an illegal manner, and the petitioner was illegally prevented from completing his answer book having been forcibly expelled from the Examination Hall and hence being not at fault, therefore, although the paper is not "lost" and "cancelled", the petitioner should be given average marks on the analogy of the principle of a "lost" or "cancelled" paper. In support of his case, learned counsel has placed reliance on the following cases:

(a) Inamur Rehman v. Federation of Pakistan and others 1992 SCM R 563.

(b) Muhammad Hanif and others v. Muhammad and others PLD 1990 SC 859.

(c) Federation of Pakistan through the General Manager (Personnel), Pakistan Railways, Headquarters Office, Lahore v. Mrs. Riaz Latif PLD 1990 SC 90.

4. As against the above arguments, Mr. Ijaz Ahmad, learned Standing Counsel has referred to rules 6.4 and 5.9 of the Calendar of Board of Intermediate and Secondary Education, Lahore, and has vehemently argued that the principle of grant of average marks is applicable only in those situations where after the paper handed over to the Authorities by the candidate the same is lost and not to those situations where the paper is taken into possession on discovery of illegal practice being committed by the student while conducting the paper in the Examination Hall. Similarly, principle of "cancelled" paper is also not applicable to this petition. Elaborating his argument, learned counsel has argued that in the case in hand, paper was snatched from the petitioner as he was found using unfair means. The only course open to the petitioner is to appear in the subject during the supplementary examination wherein he has already appeared, and the result shall be declared after calculating his marks taking into consideration the marks obtained by him in the said paper and if he passes the examination as a whole, it shall be declared that he has passed the examination in parts and not in the first Annual Examination. When confronted with the proposition that in those cases where the paper as a whole is cancelled, practice of the Board is to re-examine the students in the said subject and if they succeeded in that paper they are considered to have passed in the first Annual Examination and not in parts, learned counsel has stated that this benefit is attracted in those cases only where the paper is cancelled as a whole and not in cases of the type in hand. In support of his contention reliance has been placed on case of Sikandar Sadiq and others v. University of Peshawar and others PLD 1988 SC 638. It is further contended that the writ petition is not maintainable inasmuch as, no rule of the Board has since been violated by the respondents and even otherwise order of exoneration is based upon no evidence, hence, is of no avail to the petitioner. The last argument of the learned counsel for the petitioner is that as the Additional Secretary, Education has not been impleaded as party, hence, his conduct cannot be discussed in this writ petition in view of the law declared in case of The University of the Punjab v. Muhammad Yusuf 1990 SCM R 1012 and case of Chairman, Board of Intermediate etc. v. All Mir 1984 SCM R 433 has also been relied upon by the learned counsel for the petitioner in support of his contentions.

5. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the relevant rules on the subject. There is no denying the fact that the petitioner was not allowed to complete his paper in Maths. And the said paper was snatched away from him and he was expelled from the examination hall on the basis of the allegation that he was using unfair means. It stands established and admitted on all quarters that the allegations against the petitioner have been found false and it has been held by the Appellate Committee of the respondents that the petitioner was innocent and his paper was illegally snatched from him and he was illegally deprived of opportunity to complete his paper in Maths. It is also brought to my notice that the petitioner has appeared in the subject of Maths. In supplementary examination.

After having gone through the rules on the subject, I do not agree with the contention raised by the learned counsel for the petitioner that the petitioner is entitled to grant of average marks. It is very dearly written in the rule that the average marks can only be granted in the situation when the paper is solved and handed over to the Examiner but has been lost. This principle cannot be attracted in the case in hand. Consequently, I hold that the petitioner is not entitled to the grant of average marks in Maths. Paper.

6. The only controversy for the present is as to whether the petitioner if succeeds in the examination including Maths. Papers whether he is to be declared as having been passed in First Annual Examination in first attempt or in parts.

7. It is an established proposition of law that no one can suffer on account of the act of the authority, who has to pass an order or who has taken some action. In the case in hand, it stands established that it is the respondents who are at fault and if the petitioner would not have illegally been proceeded against and the paper would not have been snatched away from him if successful he could have been declared to have passed the said examination in the first attempt, and, therefore, depriving the petitioner of the opportunity of passing in the 1st Annual Examination is, definitely an act which is illegal and without a lawful authority. Therefore, the petitioner is entitled to be restored to the same position as of right to the maximum possible extent and hence is entitled to be given a full opportunity to appear in the subject of Maths. And on the basis of result thereof is also entitled to be declared to have passed the examination in the 1st Annual Examination and not in parts. There is no doubt that the loss or the injury which the petitioner has suffered cannot be 100% compensated but this Court has jurisdiction to put the petitioner to the same position in which he was entitled to be put to whatever extent it is now possible. Although the Rules of the Board are silent and do not cover the situation in question yet this Court is not powerless to do complete justice in the cases where there is no prohibition to adopt a particular course. It is an established principle of law that in vacant areas the principle of Islamic Law which are now enshrined in the Constitution of Pakistan as a part thereof as per Article 2-A of the Constitution, will take over and hence a person illegally deprived of a benefit has a right to be restored to the same beneficial position which he enjoyed before he was deprived thereof. The above view also finds support from certain observations made by the Honourable Supreme Court of Pakistan in case of Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 to the effect that the legal formalities and technicalities unless offering insurmountable hurdles cannot be allowed to defeat the ends of justice. Logic of words is to yield the logic of realities. In the case in hand, the petitioner has already appeared in the supplementary examination in the subject of Math's, therefore, he could at least be allowed the benefit of passing of matriculation examination by way of first attempt if he succeeds in the Maths. paper and is declared successful. The case-law cited by the learned counsel for the respondents is distinguishable on facts and is not at all attracted in the case in hand. The case of Federation of Pakistan through General Manager, Pakistan Railway supra is also not applicable to the facts and circumstances of the case. It is not the conduct of the Additional Secretary, Education which is being discussed, hence his nonimpleadment does not make the writ petition as improperly constituted. Argument of the learned counsel for the respondents to the effect that in case the petitioner is allowed benefit of appearing in supplementary examination in the paper of Maths. And counting the marks thereof as part of the Annual Examination and declare his result on the basis thereof other students having passed the examination in the first Annual Examination will be deprived of their rights, and, therefore, no relief can be granted to him in this writ petition, the affectees being not party to this writ petition, is also misconceived. The petitioner cannot be allowed to suffer at the hands of the respondents and is entitled to get his position restored of which he was illegally deprived by the respondents.

' Resultantly, I accept this petition and direct the respondents to declare the result of the petitioner on the basis of his result in the Maths paper wherein he has appeared in the Supplementary examination considering it to be a paper having been conducted during his first Annual Examination and in case he succeeds in the examination, he shall be declared to have passed in the first Annual Examination under the original Roll Number and not in parts. In view of the difficult legal position involved in this case and the case being of first impression, the parties are left to bear their own costs.