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Writ Petitions Nos. 2389 and 2390 of 1986, decided on 21st December, 1986.

--- Reglns. 2 & 3--Bachelor of Pharmacy Examination, First Professional--- Concession of five marks in case of failure in one subject (theory and practical)--Entitlement to, prior to amendment and after amendment of regulation.

Under the un-amended Regulation as it existed prior to 1977-78, there were three requirements in respect of marks required to pass the First Professional Examination in B-Pharmacy, namely (i) 45% in each of the theory papers; (ii) 50% in each of the -practical; and (iii) 50% in the aggregate. In contradistinction to this, the main provision of amended Regulation No. 2 under reference carried its own scheme by providing that the minimum number of marks required to pass this examination should be 50% in theory and practical examination separately and in each subject. However, the proviso to amended Regulation lays down that a candidate shall be deemed to have passed if he (a) fails in one subject (theory and practical) by a margin of five marks; and (b) fails in more than one subject by a margin which can be made up by distribution of five marks over the subject/papers in which he fails when he takes the examination. At the end however, it is mentioned that the number of marks by which a candidate is short shall not, however, be physically added.

A comparison of the language employed by the framers of the Regulation prior to its amendment and after amendment clearly brings out that the requirement of 50% in the aggregate has been done away with through a conscious omission. There was a further change brought about by providing that instead of 45% marks in each of 'the theory papers and 50% marks in each of the practical, a candidate must obtain the minimum marks for passing the examination as 50% in theory and practical examination separately and in each subject. Proviso to amended Regulation has introduced a deeming provision which, in other words, is designed to bring about the desired result through a fiction of law though in practical reality it may not exist.

---Scope and function of a proviso--When a proviso would have statutory force--Effect of a proviso is to except something out of the preceding portion of the enactment or to qualify something out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it--A deeming clause in a statute or a regulation was in the nature of a requirement that a certain state of affairs must be imagined for its proper construction and imagination- Desired results would be achieved through a legal fiction and a fortiori realities would, however, be lacking.

---Reglns. 2 & 3--Bachelor of Pharmacy Examination, First Professional--- Benefit of five marks--Entitlement--Benefit of five marks could be given, (f) where a candidate fails in one subject (theory and practical) by a margin of five marks, and (ii) fails in more than one subject by a margin, which, could be made up by distribution of five marks over the subject/papers in which he failed.

---Art. 199--Calendar of the University of the Punjab 1977-78 (Vol. II), Reglns. 2 & 3--Entitlement to five marks--Where candidates fulfil the requirement of Regulns. 2 & 3 of University Calendar, 1977-78 High Court in exercise of constitutional jurisdiction declared them to be entitled to benefit of five marks in the subject of Pharma Biochemistry-to render them to have passed the examination.

--- Reglns. 2 & 3--Benefit of five marks--Purpose and scope of Regulations in conferring entitlement to such marks--Purpose of Regulations whereby benefit of five marks was given to examinees, held, was, that while a person was being declared to have passed by virtue of concession of marks being given to cases covered by provisions thereof, other students passing the same examination should not be adversely affected by upgrading such concessional candidates in merit position vis-a-vis, other candidates.

M. Saleem Sehgal for Petitioners.

Ch. Muhammad Farooq, Legal Adviser for Punjab University.

Date of hearing: 24th November, 1986.

This judgment will dispose of two connected writ petitions, being Writ Petitions No. 2389 of 1986 and No. 2390 of 1985 filed by two students of the University of the Punjab in the Pharmacy Department on the grievance that they have been illegally denied the benefit of the Regulations relating to Bachelor of Pharmacy Examination First professional of the University Calendar (Vol. II) 1977-78, which fully enured for their benefit.

2. In Writ Petition No. 2390 of 1986 filed by Mazhar Iqbal, it is the case of the petitioner that he is passing in all the five subjects in the First Professional, B Pharmacy Supplementary. Examination, 1984, held in January, 1986, except the subject of Pharma Biochemistry in which he has obtained 95 marks out of a total of 200. According to this petitioner, if the amendment in Regulation No. 2 of the aforesaid Regulations is correctly construed and applied, then, by virtue of it, the petitioner is liable to be declared successful in. the examination. The petitioner's result was, however, declared to be later on and ultimately vide notification, dated 4-5-1986 the University Authorities declared him to have failed.

3. In Writ Petition No. 2389 of 1986 filed by Farooq Ahmad of the same Department, the case set up by the petitioner is that he appeared in the 1st Professional B. Pharmacy Supplementary Examination, 1984, held in January, 1986, and he passed in all the five Objects except that of Pharma Biochemistry in which he has obtained 95 marks out of a total of 200. The result of this petitioner was like the other petitioner declared to be later on and ultimately he was shown to have failed in the examination vide notification, dated 4-5-1986.

4. Both the petitioners submitted their representations to the learned Vice-Chancellor and the Controller of Examinations, University of the Punjab, claiming that they were entitled to be declared to have passed the examination in the light of the amendment in Regulations Nos. 2 and 3 of the Regulations relating to Bachelor of Pharmacy Examination First Professional of the University Calendar (Vol. II)1977-78, but without success.

5. The ground urged on behalf of Mazhar Iqbal petitioner is that he is short only by five marks in one subject only and as such is legally entitled to have been declared successful in terms of the amended Regulation No. 2. The plea of the other writ petitioner Farooq Ahmad proceeds on similar basis.

6. On behalf of the respondent-University, their learned Legal Adviser Ch. Muhammad Farooq argued that under the amended Regulation which governed the matter the number of marks by which a candidate was short shall not be physically added while giving him the concession of five marks in case of failure in one subject (theory and practical) or in respect of a candidate who failed in more than one subject by a margin which could be made up by distribution of five marks over the subject/papers in which he failed. According to him, since the five grace marks were not to be physically added, therefore, the two petitioners could not make up the requirement of 50% in theory and practical examination separately and in each subject.

7. I have given the matter my careful consideration. It would be advantageous at the very outset to take note of the Regulation as it existed before and after its amendment in the year 1977-78. Both of them are reproduced for the purpose of ready reference and appreciation:--

A careful examination of these provisions would show that under the unamended Regulation as it existed prior to 1977-78, there were three requirements in respect of marks required to pass the first Professional Examination in B. Pharmacy, namely, (i) 45% each of the theory papers, (ii) 50% in each of the practicals, and (iii) 50% in The aggregate. In contra-distinction to this, the main provision of amended Regulation No.2 under reference carries its own scheme by providing that the minimum number of marks required to pass this examination shall be 50% in theory and practical examination separately and in each subject. However, the proviso to this main clause lays down that a candidate shall be deemed to have passed if he (a) fails in one subject (theory and practical) by a margin of five marks, and (b) fails in more than one subject by a margin which can be made up by distribution of five marks over the subject/papers in which he fails when he takes the examination. At the end, however, it is mentioned that the number of marks by which a candidate is short shall, not however, be physically added.

8. The main burden of the argument of the learned legal Adviser for the Punjab University Ch. Muhammad Farooq was that the five concessional marks could be given to make up the deficiency in case of failure in one subject (theory and practical) but since these marks were not to be physically added, therefore, the second condition of 50% marks in each subject would not be fulfilled and thus the candidate could not be declared to have passed. According to him, this amounted to the same thing as obtaining 50% marks in the aggregate in the examination.

9. A comparison of the language employed by the framers of the Regulation prior to its amendment and after amendment clearly brings out that the requirement of 50% in the aggregate has been done away with through a conscious omission. There was a further change brought about by providing that instead of 45% marks in each of the theory papers and 50% marks in each of the practicals, a candidate must obtain the minimum marks for passing the examination as 50% in theory and practical examination separately and in each subject. The fate of these cases turns on the true interpretation of the proviso referred to above. This proviso has introduced a deeming provision which, in other words, is designed to bring about the desired result through a fiction of law though in practical reality it may not exist.

10. It would be relevant here to refer to the true scope and 'unction of a proviso whenever occurring in a statute or instrument having a statutory force. Reference in this behalf may be made to the case of East and West Steamship Co. Pakistan P L D 1958 S C 41 wherein it has been elucidated that a proviso is to be regarded as something which excepts a particulars case from a general principle. The effect of proviso is to except something out of the out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it. Moreover, the words of a proviso are to be construed strictly and confined to the special case which its words enact. It would also be advantageous to refer to the law laid down in the case of Prem Nath v. Kamir Mondal P L D 1965 S C 434 wherein the Supreme Court of Pakistan speaking through Hamoodur Rehman, J. was pleased to observe that a proviso as is generally accepted, is in the nature of an exception: to the substantive provision to which it has been appended.

11. Now, going by the true scope of the proviso it must be held that but for the proviso under reference, the case would have fallen under the substantive part of the Regulation. Once the case of the two petitioners is free from the rigours of the substantive provision, then the benefit of the proviso must ungrudgingly be extended to them. The proviso lays down that a candidate shall be deemed to have passed in the given situations which were fulfilled in the petitioners' case. So, it is through a fiction of law that a candidate covered by the proviso would be declared to have passed the examination. A deeming clause in a statute or a Regulation is in the nature of a requirement that a certain state of affairs must be imagined for its proper construction and application. The desired results are thus achieved through a legal fiction and a fortiori practical realities would be lacking.

12. Looking at the two cases under examination in the light of the true scope of the Regulation, it emerges clear that the benefit of five marks can be given in two cases; (i) where a candidate fails in one subject (theory and practical) by a margin of five marks; and (11) fails in more than one subject by a margin which can be made up by distribution of five marks over the subject/papers in which he fails. Each of the two writ petitioners is being given fictional benefit of five marks in the subject of Pharma Biochemistry to render them liable to be declared to have passed the examination.

13. The learned Legal Adviser for the Punjab University laid emphasis on the provision that the number of marks by which a candidate is short shall, however, not be physically added as governing the entire amended Regulation. With due deference, I am unable to agree with this interpretation. It seems to me that the true purpose of this provision was that while a person was being declared to have passed by virtue of the concession of marks being given to the cases covered by eventualities (a) and (b) of the first proviso to the Regulation, the other students passing the same examination should not be adversely affected by upgrading the concessional candidates in merit position vis-a-vis other candidates. Therefore, - the learned Legal Adviser of the University is correct in saying, that these marks are not to be physically added. But this, however, does not mean that the benefit of the proviso which is based on fictional concept of law should stand completely defeated. It has already been observed above that the requirement of 50% in the aggregate had been done away. with while amending the Regulation. Even under the unamended Regulation the legal position does not appear to favour the learned counsel for the respondents, because the self-speaking second proviso thereto reads: "Provided further that a candidate who fails in any one of the theory or practical papers or in the aggregate by five marks or less shall be deemed to have passed the examination." It will be appreciated that under the original Regulation five concessional marks were to be. fictionally added for the purposes of aggregate or individual papers. The position is no different after the amendment of Regulation No.2 in material respect. The expressionagainst eventual elf with his gun.pondents, therefore, does not merit to succeed. If the argument of the learned Legal Adviser was to be accepted then it would mean that the framers of the Regulation to give a benefit with one hand and take it away with the other. Such an intention is not to be attributed to the framers of a Regulation or a law.

14. There are two essential ingredients of the substantive clause of the amended Regulation, that is, that a student shall obtain 50% marks (i) in theory and practical examination separately, and (ii) in each subject. The proviso under reference when given its due effect will enure for the benefit of the petitioners. They are to be deemed to have passed the examination by failing in ore subject (theory and practical) of Pharma Bio-chemistry by a margin of five marks. This result flows from a plain reading of the amended provision. The other conditions or qualifications spelt out in Regulation No.2 are not in dispute and, therefore they are not being discussed in this judgment.

15. I am, therefore, inclined to hold that the petitioners in each case are entitled to the benefit of the deeming provisions of the first proviso to the amended Regulation No.2 relating to Bachelor of Pharmacy Examination First Professional of the University Calendar (Vol. II) 1977-78 and thus, would be deemed to have passed the examination through fictional/notional grant of five marks in the subject of Pharma Bio-chemistry. The writ petitions are accordingly accepted and the impugned notifications dated 4-5-1986 are declared to be without lawful authority and of no legal effect. The respondents are directed to declare the petitioners as having passed the First Professional B. Pharmacy Supplementary Examination, 1984 in which they were illegally declared to have failed through misapplication and misinterpretation of the Regulations. However, in the circumstances of the case, there shall be no order as to costs.

A.A./F-15/L Petition accepted.

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