The brief facts out of which the present writ petition arises are that the petitioner appeared in 1st Professional M.B.B.S. Part-I Annual Examination, 2003 and failed in all subjects. Thereafter he appeared in 1st Professional M.B.B.S. Part-I Supple'rnentary Examination, 2003 held in May 2004 and failed in all subjects. Then he appeared in 1st Professional M.B.B.S. Part-I Annual Examination, 2004 held ins November/December, 2004 and secured following marks:- 1st Professional MBBS Part-I Annual Examination, 2004 held in November/December, 2005.
Subject Internal Assessm entOral & PracticalMarks obtainedPassing ScoreRemarks Anatomy Theory (100)-- 66 50 Practical (100)13 44 57 60 Pass Total
(200) 123 Physiology Theory (100)--- --- 58 50 Practical (100)10 50 60 50 Pass Total
(200) 118 BiochemistryTheory
(75) 27 37.5 Failed in theory by 10.5marks Practical (75)12 40 52 37.5 Total (150) 70 The respondent declared the result; whereby petitioner failed in Bio-chemistry but passed Anatomy and Physiology subjects. The petitioner being aggrieved filed this Constitutional petition.
2. Learned counsel of the petitioner submits that there are 15 marks reserved for internal assessment. The respondent has awarded all the 12 marks to the petitioner in practical and did not count the proportionate mark in theory paper of Bio-chemistry, which is not in consonance with the regulations of the respondents which is available at page-121 of the petition. Therefore, action of the respondent is without lawful authority. He further submits that 12 marks have been awarded to the petitioner in internal assessment both in theory and practical as is evident from certificate W ITHOUT PREJUDICE Proposed allocation & score if request of petitioner for equal distribution of internal assessment marks to both theory & practical is accepted (50/50) RULE)
BIOCHEMISTRY Theory Internal Assessm entSub total Oral & Practical Total Internal Assessm entOral &practical Sub Total AllocatedScoreAllocatedScoreAllocatedScoreAllocatedScoreAllocatedScoreAllocatedScoreAllocatedScoreRemarks 75 27 7.5 06 82.5 33 7.5 6 60 40 67.5 46 150 69 Failing in theory by 8.25 marks Note: pass marks are 50% of the proposed revised aggregate score in theory and in practical.
HYPOTHETICAL WITHOUT PREJUDICE Proposed allocation & score if request of petitioner for distribution of internal assessment marks i.e. 10/15 for theory and 5/15 for practical is accepted BIOCHEMISTRY Theory Internal Assessm entSub total Oral & Practical Total Internal Assessm entOral &practical Sub Total AllocatedScoreAllocatedScoreAllocatedScoreAllocatedScoreAllocatedScoreAllocatedScoreAllocatedScoreRemarks 75 27 10 8 85 35 5 4 60 40 65 44 150 77 Failing in Theory by 7.5 marks Note: pass marks are 50% of the proposed revised aggregate score in theory and in practical.
4. Learned law officer submits that action of the respondents is in accordance with the Rules and Regulations of the respondents.
5. We have given anxious consideration to the conteotions of the learned counsel of the parties perused the record, B. It is better and appropriate to reproduce the regulation in question to resolve the controversy between the parties:- "(3) BIOCHEMISTRY Total 150 Marks THEORY One paper 75 Marks 10 Short Essay Questions40 Marks 35MCQs(one best type)35 Marks PRACTICAL& ORAL/VIVA 75 Marks Oral/viva 30 Marks Practical 30 Marks Internal assessm ent 15 Marks (10marks from theory 5marks from practical)
Mere reading of the aforesaid Regulation along with distribution of marks reveals that the petitioner is not entitled to get any marks to be included .In theory paper out of internal assessment marks. The subsequent notification dated 7.4.2005 relied by the counsel of the petitioner also does not advance the case of the petitioner which is also award of Internal Assessment Marks.--
(1) 10% Internal Assessm ent Marks will be added to both the score of theory and practical/viva examinations in each Professional MBBS Examination.
(2) The distribution of Internal Assessment Marks is recommended as under.-i. 50% in theory.. Ii. 50% in practical/viva voce
(3) A transparent policy in regard to methodology of Internal Assessment will be recommended by Board of Studies and approved by the Syndicate."
The note mentioned at the end of the Regulations in the following words:- (10 marks from Theory, 5 marks from Practical) is an instruction for the Teacher/Professor, Who is attending the student throughout the year. Through this instruction he is expected to assess the performance of the student as an Internal Teacher throughout the year and may grant him upto 15 marks. While granting these marks he is supposed to keep in mind that he can grant maximum 10 marks to the student for his performance in his theoretical studies and 5 marks for his performance for practical and viva conducted by the student before the Internal Teacher. The word theory used in this note by no means can be interpreted to include the Internal Assessment Marks in the paper of Theory.. Because, maximum marks for Theory Paper are 75 which already stands distributed as 40 and 35, for 10 short essay questions and 35 MCQs respectively. Therefore, there is no scope for addiny any mark in the Theory. Paper. The other 75 marks under the heading of Practical and oral/viva also have been distributed as 30 marks for oral/viva, 30 marks for practical and 15 marks for internal assessment. This distribution alsO indicates that 15 marks for internal assessment is absolutely a different entity having no nexus. With the performance of student during his examination held by the University whether theory, oral/viva or practical. These 15 marks, of internal assessm ent are left entirely to the discretion of the Internal Teacher and are to be sent by him to the University which are to be added to the total marks obtained by the student in the examination held by the University without making any bifurcation. However, while the Internal Teacher is sending the result of internal assessment he will keep in mind the instructions of the Regulations contained in the note and mention the distribution of marks granted by him keeping in view his performance in theory and practical separately. Learned counsel of the petitioner has failed to point out any Rule and Regulation violated by 'the respondents which is condition precedent for maintainability of the Constitutional petition as the law laid down by the Honourable Supreme Court in Ali Mir's case (1984 SCM R 433). We also do not find any violation of Article 25 of the Constitution. Even otherwise notification dated 7.4.2005 has prospective effect and not retrospective effect as the law laid down in the following judgments:-- M/s. Army Welfare Sugar Mills Vs: Federation of Pakistan (1992 SCM R 1652)
Pakistan Vs. Salahuddin (PLD 1991 S.C. 546)
In view of what has been discussed above, the writ petition has no merit and the same is dismissed.