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Constitutional Petition No. D-1247/85 of 1986, decided on 27th November, 1986.

---Rr. 3, 4 & 5--Rules entitling candidate to improve division- Amendment by subsequent notification--Effect--Subsequent Notification by which amendment was made in Rules entitling candidate to improve his division in examination, would have no retrospective effect to affect right of candidate vested under various Rules--Entitlement of candidate to improve his division prior to issuance of such Notification, held, would remain unaffected and unaltered.

Abdus Salam Qureshi for Petitioner.

Sarfraz Ahmed A . A . -G . on Court Notice.

Pir Bux Khamisani for Respondents Nos.l and 2.

Respondent No.3 in person.

Date of hearing: 27th November, 1986.

--The petitioner had felt aggrieved against the notification, dated 12-10-1985 issued by the Board of Intermediate and Secondary Education, Hyderabad to the effect that the improvement of Grade Scheme is only meant for those candidates, who had passed their Higher Secondary Certificate Part-II (Annual Examination) 1985 for first time. It was further directed that those candidates, who had passed their Higher Secondary Certificate Examination prior to 1985 or have availed of the chance, are not eligible to apply.

The petitioner's counsel has relied upon rules regarding improvement of division issued by the Board of Intermediate Secondary Education, Hyderabad. Rule Nos.3, 4 and 5 are to the following:

Rule No. 3(i)No candidate who wishes to improve the division will be allowed unless he/she has already passed the SSC/HSC Examination.

(ii) The candidate will be allowed to improve the division either by appearing in all the papers of Part-I or all the paper Part-II or all the papers of Part-I & II taken together. Such candidates who will repeat any part or the Examination as a whole will compulsorily have to appear in Theory as well as Practical of the papers where the Practicals are prescribed.

(iii) The candidate will not be allowed to re-appear in individual papers or subjects.

(iv) No application will be considered unless a fee of Rs.20 (Non-refundable) is deposited alongwith the admission form in addition to the usual Examination fee.

Rule No-4: A candidate who wishes to appear in any of the Board's Examination with a view to improving the division, shall not be eligible to appear at any other examination during the same academic year. Permission may be granted to the candidates who pass the S.S.C./H.S.C. Examination in the Supplementary/Compartmental Examination and they may be allowed to improve the division at the next Annual Examination.

Rule No.5: The concession to improve the division 'shall be granted once only. in all such cases only one chance will be given whether in Part-I or with Part-II of the given Examination will be counted as the chances availed of for the purpose of improvement of division."

The above quoted rules clearly show that any person, who wishes to improve his division has to be allowed to appear in the S. S. C. and H . S . C . Examination. There was no bar contemplated in these rules, like the one, which has been placed in the notification of I2-10-1985. Previous to 12-10-1985 any person, who had passed the examination of S.S.C./H.S.C., at any time before 1985, could appear in any examination for improvement of his division. The Notification of 12th October, 1985 however, restricts the chance of improving only to those persons who passed their H. S. C. Part-II (Annual Examination) 1985 for first time and deprived the others, who had passed such examination before 1985 as not eligible to apply. Admittedly the petitioner has not availed of the chance of improving his division at any time before the date of the petition. The petitioner had passed his H.S.C. Examination in 1984 and, therefore, according to the rules was ineligible till 17-3-1986 and, therefore, the notification, dated 12-10-1985 was of no legal effect as the rules had to have precedence over the notification which was in conflict with the rules at that time.

Mr. Sarfraz Ahmed, Assistant A.-G. and Mr. Pir Bux Khamisani for respondents Nos.l and 2 have relied upon a circular issued on 18-6-1986 whereby the Board of Secondary & Intermediate Education, Hyderabad, Sind had amended rule No.4 of the rules regarding improvement of division by the student as mentioned above and it has now been provided to the following effect:-

"A candidate who wishes to appear in any of the Board's Examination, with a view to Improve the Division, shall not be eligible to appear at any other Examination during the same academic year. Permission may be granted to the candidates who pass the S.S.C./H.S.C. in the Annual as well as Supplementary/Compartmental Examination & they may be allowed to Improve the Division at the next Annual Examination."

This amendment of rule No.4 cannot affect the rights of the petitioner as it has come inter existence only on 18-6-1986 after the petition had been filed. And, therefore, it did not affect the rights of the petitioner, which had to be decided in accordance with the rules prevailing on 27-3-1986. Moreover, .on 27-3-1986 the petitioner had been permitted by this Court to appear in the examination for the improvement of his division and we understand that the petitioner has actually appeared in the examination and his result is being withheld by the Board on account of the pendency of this petition. Therefore, it is clear that the notification of 18-6-1986 cannot affect the rights of the petitioner, as it is well-known proposition of law that a notification cannot have retrospective effect. We are further of the view that the amendment of rule 4 by the respondent No.l itself suggests that the notification of 12-10-1985 was not supported by the rules till the same were duly amended on 18-6-1986.

In, this view of the matter, we declare that the notification of 12-10-1985 did not affect the right of the petitioner to appear in an examination for improvement of his division and the petitioner had the right at the relevant time according to the rules to appear in the A examination. Since the petitioner has already appeared in the examination, therefore, the only direction necessary at this stage is that the respondents Nos.l and 2 should declare .the result of the petitioner for the examination in which he has appeared under the orders of this Court, dated 27-3-1986 and those examinations were held in May, 1986.

This petition is, therefore, allowed in the above terms with no orders as to costs.

H.B.T./Y-4/K Petition allowed.

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