Aqib Javed vs Hec etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN.

JUDICIAL DEPARTMENT

W.P.No.14339 of 2020 Aqib Javed & another Versus Higher Education Commission of Pakistan & 7 others Sr. No. of order/ Date of order/ Order with signature of Judge, and that of Proceedings Proceeding Parties’ counsel, where necessary 25.03.2021 M/s Falak Sher Watto, Advocate; Safdar Hussain Sarsana, Advocate; Sheikh Usman Ali, Advocate; Syed Jaffar Tayyar Bukhari, Advocate and Mehroze Aziz Khan Niazi, Advocate for petitioners in this and connected petitions.

Mr. Fakhar Raza Ajmal Malana, Advocate for the respondents-HEC.

Ch. Shakil Akhtar Sidhu, Assistant Attorney General for Pakistan.

Mr. Muhammad Aurangzeb Khan, Assistant Advocate General, Punjab.

This consolidated order shall decide the instant petition as well as the connected writ petitions i.e. W.P. No.227 of 2020 and W.P.No.14125 of 2019 as similar questions of law and facts are involved in the same.

2.Although separate grounds have been taken by the petitioners through the afore-referred petitions, however, the main grievance raised by the petitioners is that the examination paper of Law Graduate Assessment Test “Law-GAT” conducted by respondent-Higher Education Commission of Pakistan “HEC” contained 05-marks portion relating to Private International Law which is neither prescribed in course outline nor taught in LL.B classes, hence the same being beyond the scope of studies could not form part of the afore-referred

Aqib Javed & another v. HEC & 7 others

examination of Law-GAT for the purpose of considering the case of petitioners for enrolment as advocates by the Punjab Bar Council.

3.Although learned Law officers and counsel for the HEC have argued to contradict the stance of the petitioners, yet when confronted, learned counsel for respondents-HEC states that the afore-referred examination, which is preliminary examination for purpose of registration of advocates with the Bar Council, had been conducted by HEC on the basis of course outline prescribed for the said purpose which included 10 marks portion for International Law, out of which, 05 marks were reserved for Public International Law and the remaining 05 marks for Private International Law. It is further argued that neither the respondent- Bahauddin Zakariya University “BZU” nor any other university had ever informed the HEC that Private International Law was not part of their LLB syllabus and curriculum or course outline; consequently, he defends the action of the HEC.

4.During the course of arguments, nothing has been placed on the record to show that Private International Law was included in course outline of LLB Program offered by the university and it has transpired that the Private International Law does not form part of LLB examination curriculum/course outline for the BZU university and it has been argued by learned counsel for the petitioner that the same is the position for other universities as well; however, the said aspect of the matter cannot be commented upon with precision as other universities have neither been impleaded as

Aqib Javed & another v. HEC & 7 others

respondents nor are represented before this Court as none of the petitioners have passed LLB exam from those universities, however, on query the learned counsel for HEC states that in order to prevent further controversy for future Law-GAT examination, the entire 10-marks portion for International Law shall be from Public International Law and not from Private International Law.

5.Be that as it may, it is observed that the purpose of prescribing courses and curriculum is that candidates are to be taught from the course and curriculum which is prescribed and by implication candidates can be subjected to examination only from within and not out of curriculum/syllabus prescribed. Wherefrom it may be inferred that the portion of the examination paper that was outside the course and curriculum prescribed by the universities from which the candidates graduated before appearing in the Law-GAT examination was beyond the scope of examination and a surprise for the candidates who have never gone through the said course during their studies and hence could not be expected to answer the said questions on the basis of their studies/acquired knowledge at LLB level and they could at the most attempt the said questions through guess work. If despite not forming part of course outline, the Private International Law was to be made a part of the examination process, at least notice should have been issued to the candidates concerned that the same shall be form part of the course outline for Law-GAT examination despite the fact that it was not included in the LLB syllabus which has not been done, besides for subsequent examinations, Private International Law shall

Aqib Javed & another v. HEC & 7 others

not form part of the Law-GAT examination as informed by the counsel for the parties from which inference may be drawn that same was made part of the instant Law- GAT examination under some misconception and without notice, which is against the principles of natural justice manifest from legal maxim Audi Alteram Partem.

6.In somewhat similar situation which came up for consideration in a case reported as Tehseen Mazhar and 24 others v. Vice Chancellor, University of Punjab and 2 others (PLD 2008 Lahore 19), the Court while considering a case of examination conducted by the University of the Punjab wherein some questions in the question paper were out of course outline and curriculum taught in the university, the Court allowed additional marks to the candidates by treating the same as “compensatory marks” instead of “grace marks” by mentioning distinction between the same by observing that grace marks are always awarded to an individual while compensatory marks are awarded to class of individuals with a view to offset the effect of a paper which admittedly was not from within the course.

7.In these circumstances, while relying upon the principle laid down in the judgment passed in Tehseen Mazhar’s case (supra) it would be appropriate to hold that as 05 marks portion of Private International Law had been made part of examination paper without notice to the candidates including the petitioners, the same would amount to surprising them at the time of examination taken by them and consequently, this Court holds that the petitioners are entitled for 05 additional marks for the said portion as compensatory marks to the extent of said

Aqib Javed & another v. HEC & 7 others

questions to offset the effect of paper which was not from within the course outline and not as grace marks.

8.For what has been discussed above, these petitions are allowed with a direction to respondent-HEC to allow 05 additional marks for the portion of Private International Law to the petitioners and all the candidates of the afore-referred examination of Law-GAT and in case any candidate is declared as pass, the Bar Councils shall process the matter accordingly.

(MUZAMIL AKHTAR SHABIR)

JUDGE

*KMSubhani*

Approved for reporting.