' NAZIR AHMAD SIDDIQUI, J.--- This single judgment shall dispose of the following Intra-Court Appeals arising out of common question of law and facts and same judgment dated 19-4-2005 passed by the learned Single Judge in Chamber, whereby Writ Petition No,1436 of 2005 and Writ Petition No,1690 of 2005 filed by the appellants challenging their result in practical examination of E.N.T. (Final Prof.' M.B.,B.S.) were dismissed:-
(1) Mehreen Zaidi v. University of Health Sciences and others I.C.A. No,98 of 2005 and (ii) Muhammad Ali Khan v. University of Health Sciences and others I.C.A. No,93 of 2005.
2. Brief facts necessary for the disposal of the instant appeals are that the appellants (possessing brilliant academic record right from Primary School to Medical College) appeared in the 1st Annual Examination of Final Professional M.B.,B.S., 2004 [(under Roll Nos.468 and 625; conducted by the University of Health Sciences (hereinafter referred to U.H.S.)] held in November, 2004, being the students of Nishtar Medical College, Multan. They qualified all the subjects with exceptionally good marks but they were shown as "fail" in the subject of E.N.T. This result was quite shocking for them. On inquiry it came to their knowledge that they qualified theory but declared as "fail" as they allegedly could not qualify the practical examination. They assailed this, result through the above numbered Constitutional petitions not only on the ground of personal bias (particularly attributed to the internal examiner with details) but also with regard to the flagrant violation of Regulations framed by U.H.S. For conducting the practical examinations and preparation of the award list with reference to the same. The learned Single Judge in Chamber dismissed both the said Constitutional petitions vide the judgment, now impugned through the instant appeals filed under section 3 of the Law Reforms Ordinance, 1972.
2. Arguments head. Record perused.
3. The pivotal issue remained under heated debate, was "as to whether the Regulations framed by U.H.S. For conducting the examinations, especially the practical examinations, had been strictly followed?" If the answer is in negative, "what would be the impact qua the result in question particularly when serious allegations of favourtism and personal bias were levelled against the internal examiner (already detailed in the Constitutional petitions as well as in the body of instant appeals)?".
4. To comprehend and resolve the above issue, better it would be to reproduce hereunder the relevant regulations duly approved by U.H.S. And admittedly the same were applicable to the examinations held in November, 2004. As per Regulation No,2 (known as Statutes and Regulations for M.B.,B.S. First Second, Third and Final, Professional Examinations), the criteria for passing a subject has been stated as under:- - "(2) The minimum number of marks required to pass this examination for each subject shall be fifty per cent (50%) in written, fifty per. Cent (50%) of the aggregate in the oral and practical/clinical and fifty per cent (50%) in the clinical examination separately at one and the same time..."
By applying this Regulation, the appellants [whose detailed marks in E.N.T. (noted below)] have been declared as 'fair:- Theory (75)
Roll No. Name of Candidate Q.1Q.2Q.3Q.4Q.5 Extra GraceSub TotalPass/Fail 468 Mehreen Zaidi 12 13 9 -- 12 -- 46 Pass 625 Muhammad Ali Khan 12 12 10 -- 11 -- 45 Pass Clinical (50) Practical(25) Clinical & Practical Sub TotalPass/FailInternal AssessPracticalSub Total Total Fail/Pass 18 Fail 11 9 20 38Fail84 Fail 21 Fail 8 2 10 31Fail76 Fail ' It would not be out of place to mention here that the practical examination consists of two components i,e, (1) Clinical (50 marks); (ii) Practical (25 marks) comprising internal assessment (15 marks) and practical/viva voce (10 marks).
5. Now coming to the Regulations (known as, "Regulations for conduct of Examinations"), also duly approved by U.H.S. And undeniably the same were also applicable to the examinations of M.B.,B.S. Held in November, 2004. It is laid down in Regulation No,5(3)(iv)(v)(xii-A, i, j, k), as under:- "(iv)The-number of External Examiners and Internal Examiners shall be equal.
(v) External Examiner shall always be associated with Internal Examiner. In Oral/Clinical examination both Internal Examiner and External Examiner shall always examine the candidate together and no single Examiner shall examine the candidate, in isolation. The marks shall,, however, be entered by each Examiner in separate award list without consulting the other Examiner.
(vi) ..........................................
(vii) ................
(viii) .......................................................................................................................
(ix) ..................................................
(x) ..
(xi)
(xii) While preparing the award list for Oral and Practical/'Clinical examination, the Examiner must ensure that:
(a) Award list is prepared separately by both External Examiner and Internal Examiner.
(b) ..
(c)
(d) ......................................................
(e) ......................................................
(g) ...........................................................
(h) .........................................................................................................................
(i) Marks obtained by the candidate are entered correctly in the award list both in figures and words against the corresponding roll number.
(j) Marks entered on the award list shall not be altered. When such an alteration is inevitabl for any specified reason, the original marks shall not be erased or over-written. The Examiner shall draw a line crossing the marks to be corrected in such a way that what has been cancelled is still legible and then, enter fresh marks, and put his/her signatures against the cancelled ones.
(k) Immediately after completion of Oral and Practical/Clinical examination, the award lists should be, sent through special courier to the Controller of Examinations on the same day in a sealed envelope marked as "Confidential".
Undeniably, no separate award list was prepared by the Internal and External Examiner with reference to their independent assessm ent of a candidate and awarding of marks to him/her; that as per the Internal Examiner (respondent No,4), result was dispatched after a period of 15 days of completion of the examinations but as per learned counsel for the appellants result was dispatched after a period of 24 days. Be that as it may, it cannot be disputed that the result of the practical examination was not dispatched on the same day when the said examination was completed. On a Court question as to what for the result remained lying with the Internal Examiner, no satisfactory answer was given except that preparation of such a result involved consumption of a good length of time; that it has been noticed that in the case of appellant-Mehreen Zaidi (Roll No,468), the original makes earlier entered in the column of "Clinical" in the award list (under challenge) were altered in such a fashion/hotch-potch manner that the original marks already written on the award list could not remain legible and it appears that the same were tendentiously made illegible. The altered marks now shown are 18 bringing her within the mischief of failure. The spirit of the Regulation 5(3)(xii)(j) is that even after alteration/correction, the original marks should appear legible so as to give a fair, clear and unblurring picture of what has been earlier done by the examiner. It is worth to be noticed that this alteration was signed only by the Internal Examiner and not by the External Examiner. On a Court question, it was also not explained as to what for the External Examiner did not sign the alteration in the award of this appellant along with the Internal Examiner. If the alteration has been made with the mutual consent and within the view cf External Examiner, what has prevented him from endorsing the same with his signatures thereupon. No answer was given at all. A perusal of the award list placed on the file shows that whenever the marks were altered qua the other candidates, the manner laid down in this regard with reference to the said Regulations, has been somewhat followed e.g. Against Roll Nos.450, 487, 509, 530 and 630 and the original marks remained easily legible and it has been surprisingly noticed that against all these roll numbers, marks have been increased. Of course, such alterations too were not signed/counter-signed by the External Examiner.
6. On a Court question, respondents Nos.4 and 5 did frankly concede that they were fully aware of the above-referred Regulations since long and the same were required to be followed. On a further question, as to what for these Regulations were not complied with, they could not come forward with any satisfactory explanation in this behalf but simply stated that practice was otherwise i,e, to prepare a joint award list. The learned counsel for U.H.S. Was also obliged to acknowledge that though, these Regulaticns were applicable for conducting the said practical examinations and preparation of award list with reference to the same, yet the same were not followed.
7: From the side of the appellants, it was also vehemently urged that the candidates who had not performed well/satisfactorily at all in the internal Assessment based on the performance of one full academic year, had been awarded maximum marks in the practical.' Reference has been made to the eases of Roll Nos.513 and 585 who allegedly secured zero marks or very low marks in internal Assessm ent but they had been given 10 out of 10 in viva/practical. Reference has also been made to the case of Roll Nos.540, 542 and 633 (whose result, reproduced hereunder), to how that they have also been declared as "pass" in derogation of the relevant Regulation 2, reproduced in para. 4:-- Theory (75)
Roll No. Name of CandidateQ.1 Q.2 Q.3 Q.4 Q.5 Extra GraceSub TotalPass/Fail 540 Hamid Hassan12 12 10 -- 12 -- 46 Pass 542 Syed Sohaib Haider Zaidi13 10 13 -- 13 -- 49 Pass 633 Muhammad Usman13 12 14 -- 10 -- 49 Pass Clinical (5) Practical(25) Aggregate of Clinical & Practical Sub TotalPass/Fail Internal AssessPracticalSub Total Sub Total Pass/Fail 28 Pass 8 2 10 38 Pass 27 Pass 8 3 11 38 Pass 26 Pass 9 3 13 39 Pass ' Whereas the case of the appellant-Mehreen Zaidi is at par with them, but she was declared "fail".
Learned counsel for U.H.S. States that presently he is not in a position to comment upon the aspect of the matter, noted in this para.
8. It is now well-settled that when the law requires an act to be done in a particular manner, otherwise_ doing oversize renders the same a nullity in the eye of law. In the context of this principle, it is safely settled from the above resume that the Regulations meant for conducting the examinations have not been followed at all It has also been brought to our notice that the Academic Council of Nishtar Medical College, Multan and Board of Management of this Institution had strongly recommended that the said Internal Examiner be debarred from holding the examinations further and the U.H.S. Quite conscious of such glaring violation of these Regulations resulting in grave miscarriage of justice to the aggrieved appellants has ultimately disqualified him for further appointment as Examiner.
9. Now the question arises as to whether the entire result of E.N.T. (Practical Examination) can be quashed but it would be quite unfair to those who had already been declared successful in the said examination with reference to the said result. But it would also be unfair to the appellants (undoubtedly qualifying all the previous examinations with flying colours in the very first attempt and never faced any supplementary examination and their previous academic career is of high profile and stands at a distinctive position when compared to a large number of other students) who had been badly/adversely affected on account of flagrant violation of these mandatory Regulations meant for promoting a transparent system of examination. The policy/rule-makers of U.H.S. Deserve to be appreciated for framing these Regulations but at the same time, the office of the Controller of Examinations as well as the said examiners miserably failed to discharge their assignment fairly, honestly, justly and diligently in the context of implementation/substantial compliance of the said Regulations. If such an alarming tendency (for not caring the Rules/Regulations aimed at ensuring a fair and transparent system of examination), is not timely and effectively checked, there shall be no end to the allegations/complaints/grievances in the context of malpractice, favouritism, personal bias etc. Etc. (as in the instant case) and the confidence/trust reposed by the public in general and the students in particular in the system of examination, shall also be awfully impaired.
10. All the above factors taken together persuade us to hold that the grievance of the appellants being genuine merits to be redressed. Now the question comes as to how it can be done? It is stated in Regulation No,7(viii), "The benefit of grant of average marks shall not be given to the candidate in case of rechecking if his/her answer book(s) is/are not traceable at the time of rechecking. In such cases, verification from original award list shall be deemed to be final", but the Regulations are silent to meet with the present situation. At this juncture, Regulation 7(3) relating to internal assessment is of some significance. Relevant portion thereof is reproduced as under:--
(i) The weightage of internal assessm ent shall be 10% in all subjects.
(ii) Continuous internal assessm ent shall consist of evaluation at the end of each assignment, e.g. stages/sub-stages, class tests etc. Attitudinal assessm ent from education and/or clinical supervisors, clinical skill assessm ent from clinical supervisors, and Year's work books.
(iii) Assessm ent of knowledge, skills and attitude shall contribute towards internal assessment. Methods used to assess these domains shall include Multiple Choice Questions of one-best type, Short essay questions, oral/viva, and Practical/Clinical examinations.
(iv) The score of internal assessm ent shall contribute 10% to practical score in the final examination.
Final University examination of each subject shall contribute 90% to total score, and the candidate shall pass in aggregate.
(v) Awards of internal assessm ent in a11 the subjects of all the candidates shall be submitted to the Controller of Examinations along with Admission Forms for the annual examination. Internal assessment received after commencement of the final examination shall net be accepted.
(vi) The marks of internal assessm ent shall be submitted only once a year prior to annual examination and the same shall be counted both for annual and supplementary examinations. It is further emphasized that fresh assessm ent or a revision of assessment for supplementary examination shall not be permissible.
(vii) Proper record of continuous internal assessment shall be maintained by respective departments of the Medical Colleges.
11. From the above, it is evident that throughout the academic year, a student remains under constant watch and supervision very minutely and critically qua his/her studies theoretically and practically and his/her achievements so assessed and recorded from a valid basis of internal assessment, to be credited, 'to practical score in the final examination'. This being so, in all fairness and in the perspective of safer dispensation of justice, we can rely on the internal assessment qua the present appellants in the subject of E.N.T. (undisputed), for tabulation of average marks in the practicals (under challenge).
12. A perusal of the impugned judgment of the learned Single Judge in Chambers shows that the matter was neither examined in its true perspective nor the above aspects were taken into consideration, hence, the same suffers from inherent infirmities. Resultantly, the same is set aside by allowing these appeals and the result of the appellants showing them as "fail" in the practical examination of E.N.T., is liable to be reevaluated and re-assessed on the basis of the marks obtained by them in the internal assessm ent and the result so tabulated shall be announced within one week from the receipt of copy of this judgment. No order as to costs.
13. It is made clear that this judgment has been passed in the peculiar circumstances, therefore, the same may neither be cited/used as a precedent nor affect the meritorious position of any other student/ candidate with reference to the result already announced and the same shall remain intact.