' ALI AKBAR QURESHI, J.---Writ petitions 1112 of 2008, 2232 of 2008, 2261 of 2208 and 3245 of 2008 filed by petitioners involving identical facts and common question of law shall stand disposed of through this consolidated order.
2. Precisely the relevant facts forming part of these petitions are that petitioners possessing excellent academic record, students of Intermediate Part II Pre Medical Group enrolled with' the respondent Board, appeared in the Intermediate Part I Annual Examination 2007 (Pre Medical Group) and allegedly secured the marks in terms of table annexed with this petition. It is the case of the petitioners that science subjects inclusive of Physics, Chemistry and Biology contained 33 objective type of short questions, of which each candidate had to attempt 22 short questions of his own choice each carrying 2 marks. And in case of correct answer of every short question, 2 marks were to be allocated and in the event of incorrect answer, it was to be valued at zero. Instead, petitioners were granted only one mark against each correct short answer rather than 2 marks in the subject of Biology. It is further canvassed that in the same manner 2 marks for every short question in the subjects of Chemistry and Physics were awarded respectively. Being dissatisfied, petitioners applied to the respondent Board for rechecking of their original scripts and the Board found and endorsed that Examiner and the Head Examiner had correctly checked and evaluated the questioned short questions awarding one mark for each. And ultimately, the respondent Board intimated the petitioners in the manner that on rechecking of answer books in the subject of Bio-I for the Intermediate (Annual) Examination, 2007 no mistake of any kind was found and consequently petitioners result already declared was confirmed once again".
3. It is the claim of the petitioners that on account of commendable performance in their respective academic career showing excellent results in the subjects of Physics and Chemistry securing more than 90% marks, they also performed well in the questioned papers and assert that had their papers of Biology been properly examined/checked, they would definitely improve their positions, and expressed their apprehension that due to incorrect marking they would suffer irreparable loss. To substantiate their contentions, petitioners also annexed their result cards.
4. In response to the notice issued by this Court, the respondent Board filed its report and parawise comments. The Board while filing the comments referred the provisions of the Calendar of the Board of Intermediate and Secondary Education and also the regulations and rules framed thereunder. The respondent Board also referred the law declared by the Honorable Supreme Court of Pakistan, and lastly asserted that this Court has no jurisdiction to re-evaluate the answer sheets while exercising the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan.
5. It is contended by the learned counsel for the petitioners that the examiner and the head examiner appointed by the respondent Board are assigned the vital and noble task of checking the papers/answer sheets had in fact incorrectly and wrongly evaluated the questions by ignoring the clear cut instructions. Given by the respondent Board. Next asserts that the instructions pertaining to the annual examination, 2007 deal with the marking of the objective and subjective type of questions/answers and in the said instructions, it has clearly been mentioned as regards "section 1-Question 2 of the Biology paper that two marks for each correct answer according to text book."
Learned counsel also relied on a judgment of the Honorable Supreme Court of Pakistan PLD 1992 SC 263 Board of Intermediate and Secondary Education Lahore through Chairman v. Mst. Salma Afroz and two others.
6. Conversely learned counsel for the respondent Board states that according to rule 19 of the Chapter V of the respondent Board a procedure for the candidates appearing in the examination for filing the applications for the rechecking of their answer sheets has been laid down. Also contends that respondent Board on the application Of the petitioners did show them the questions papers and also undertook to recheck the same strictly in accordance with the criteria given in the aforesaid rule precluding any element of illegality or irregularity. The learned counsel next contended that the apex Court in an unreported judgment Cr.PLA 219-L of 1998 held that this Court cannot re-evaluate the answer sheets while exercising the constitutional jurisdiction because of the fact that the checking of the answer sheets is the exclusive job of the experts in the relevant subjects. Lastly contends that it was wrongly argued on behalf of the petitioners that the question papers of the subject of Biology was of "objective types", whereas, in fact the same was that of "subject type" and it is the sole prerogative of the examiner to examine the answer sheets and award the marks after evaluating the answer given by the students. And that any sort of re- evaluation would be contrary to the rules and the criteria laid down by the Board. He relied on the provision of the Calendar of the respondent Board and a judgment reported as PLD 1992 SC 263 ibid.
7. Arguments of the learned counsel for the parties heard at length and record perused with their assistance.
8. The contentions advanced by both sides are to be considered and viewed in view of the record available on the file. To begin with, the respondent Board provided question papers of the Biology at the time of conducting the examination, whereby the students/petitioners while answering question No,2 of section 1 were required to attempt 22 short questions out of 33. The question paper also bears that each correct answer of every short question shall carry 2 marks and that in case a student attempted 22 short questions giving correct answers will secure 44 marks. It is also pertinent to mention that in the question paper the respondent Board has also unequivocally clarified in the following manner:-- "Write the short answer to any 22 of the following questions". In front of the same line "total marks in case of correct answers would be 44 (22x2=44)"
9. The respondent Board thereafter sent the papers/answer books to the examiners along with the instructions for checking/marking the answer books. The instructions annexed by the respondent Board as annexure A(II) is an important document to be examined and appreciated for the resolution of the controversy involved herein. It is also pertinent to mention that these instructions are specifically and articulately meant for examining the answer books of subject Biology paper class 11 for the Exam, Annual 2007. According to the instructions as mentioned, it is new pattern to examine the answer books and the respondent Board while giving the instructions in writing dealt with all the sections of the papers and while dealing with question No,2 of section 1 of the paper of Biology, the following instruction/guideline was given:-- .Section-I "Instructions for examining answer books (new Pattern)" "Subject Biology Annual 2007 Part 1 Paper 11 Class"
"Q.2 Two marks for each correct answer according to text book (22X2=44)."
10. On the touchstone and criteria laid down by the respondent Board, the examiner/head examiner appointed by the respondent Board was bound to follow instructions for examining the answer books circulated by respondent Board in letter and spirit at the relevant time of dispatching the answer books to the examiners. The examiner is no doubt is an expert of the subject concerned but also required to examine/check/ evaluate the answer books strictly in accordance with the yardstick, instructions/guidelines unambiguously given by the respondent Board. The instructions supra would clearly relevant that in case of each correct answer, two marks were to be awarded. It is pertinent to reiterate that respondent Board has not mentioned or referred or instructed otherwise that the examiner can also award marks of correct answer less than two or upto two marks. The bare reading of the instructions applicable herein is sufficient to understand that the examiner is required to award two marks for each correct short answer and vice versa Zero. In fact, the word (correct answer) used by the respondent Board in the instructions is of utmost significance, and the examiner had no other option but to award two marks for each correct short answer or zero to an incorrect answer. In this case, although the examiner while examining the answer books of question No,2 of section 1 of Biology paper reached to a conclusion that the short answer given by the students is correct, yet awarded one mark instead of two. Of course, the examiner is not required to offer explanation or reasons for awarding the marks, but is bound to award the marks in line with instructions of the Board for each and every short questions. In fact, the respondent Board while setting the paper of Biology, consciously adopted the methodology in asking the students to give short answers of the short questions so as to assess the capability of the students in the specified area of subject, and knowingly and rightly specified two marks for each correct short answer to each short question, and no discretion whatsoever was left or given to the examiner to award more or less marks than two marks for each short answer by the students.
11. The second limb of the arguments of the respondent Board that while exercising the constitutional jurisdiction in view of the judgment supra of the apex Court, the answer book cannot be re-evaluated. In this particular context and in respectful agreement with the law laid down by the apex Court, I would reiterate that mere question of re-evaluation of answer books is not involved, but real point in issue is deviation from the guidelines/instructions by the examiners who are obliged to adhere to the instructions and in case of violation or non-observance thereof, the jurisdiction can be exercised. The respondent Board which is the statutory body is primarily responsible for efficient conduct and to regulate the mechanism of the examinations and to exercise its A supervisory control over the examiners by the providing guideline to ensure foolproof checking of the answer books of the students, so the respondent Board as well as the examiners are statutorily bound to act in accordance with the provisions of the BISE Calendar and the instructions framed thereunder.
12. In the present case, the respondent Board gave the instructions while exercising the power conferred upon it by the provisions of the BISE Calendar but apparently those instructions were not followed or acted upon rather those were violated and deviated by the examiners. Undue haste appears to have been shown by the respondent Board, and the issue should have been resolved in accordance with the provision of BISE Calendar and instructions at the time when the petitioners moved applications for rechecking of their papers. The respondent Board could have corrected the irregularity committed by the examiners in consonance with the guidelines and instructions by sending the answer books back to the examiners along with the instructions issued by the Board in this regard. As observed earlier that with utmost regards to the law laid down by the Hon'ble Supreme Court of Pakistan (PLD 1992 SC 263) that re-evaluation of the answer books should not be allowed to be resorted to but in the instant case the position is otherwise and for facility of reference relevant portion is reproduced as under:-- "Constitution of Pakistan (1973), Art. 199---Re-evaluation of answer books was not provided under the calendar. In absence of statutory provision, authority was left with the residual law as laid down in Settlement Commissioner v. Raja Muhammad Fazil (PLD 1975 SC 331) where every authority and every tribunal and every Court had to undo fraud, perversity and a manifest absence of its authority affecting its jurisdiction. If there was criminal design or a fraud perpetuated on the candidates or a manifest case of victimization by the examiners, then such principle of undoing the wrong was available both to the Board as well as to the Court provided the requisite procedure was adopted and the factual foundation was well established. In case such a decision is given, annulling the earlier evaluation by the examiner, the said examiner should stand disqualified for ever from handling the answer books/papers of every examination conducted by the Board. It is necessary for the institutions which are dealing with the students and guarding the purity of examinations that the merit of the students should be protected and enhanced rather than thrown into jeopardy. The Board should take appropriate steps against the examiner who indulged in such calculated perversity and criminality."
13. This Court is fully conscious of the fact and the law laid down by the apex Court that students should be protected rather than throwing them at the mercy of the examiners and the Board.
Needless to emphasize that respondent board should invariably exercise its parental jurisdiction keeping in view the career of the students, whereas in this case the respondent board instead of exercising the jurisdiction parental as well as legal shunted out the students in a typical, mechanical and clerical way. The reply given to the students in terms of impugned intimations by the Board consequent upon their applications for rechecking is also stereotyped in nature.
Evidently, the Board did not even bother to examine the contents of the applications of the students, provisions of the BISE Calendar and the instructions regulating the conduct of the examiners vis-a-vis checking and evaluating the answer books in accordance with Rule 19 of Chapter V of the Board Rules.
14. In any case petitioners did not ask for rechecking, re-evaluation, mathematical tabulation, portion of any question having been left unmarked and the answer book having been changed, but only and only solicited implementation of the instructions given by the respondent Board to the examiners for checking the answer books of students. This Court also takes notice of fact that undeniably all the petitioners secured highest marks in other science subject as well in addition to the optional subjects.
15. The upshot of the foregoing facts and reasons would be that examiner appointed by respondent Board checked/examined the answer books of the petitioners in a most perfunctory and arbitrary manner rather in total defiance and violation of the categorical instructions issued by the respondent Board on this particular subject. In this view of the matter, impugned letters are not sustainable in the eye of law and are accordingly set aside with the result that these petitions are disposed of by remanding the matter to respondent Chairman of the Board with B direction that he along with respondent No,2 shall decide the applications of the petitioners in the light of the findings of this Court supra afresh in line with the provisions of BISE Calendar and the instructions circulated to the examiners and shall ensure re-examination of the answer books afresh of Biology/Chemistry papers of the petitioners by or before 1st of September, 2008 owing to the fact that petitioners are to sit in the Entry Test for getting further admissions in the next higher classes.
At this juncture, attention of this Court is being drawn by the learned counsel for the petitioner to the news items appearing in the press that petitioners are required to the their applications for entry test before 4th of September, 2008. In this view of the matter, petitioners are also directed to appear before the respondent Chairman on Ist of September, 2008 at 10 a.m. And the Chairman shall decide the issue positively by 2nd of September, 2008 facilitating the students to pursue their academic careers. Additional Registrar of this Bench shall personally ensure communication and compliance of this order by the respondents. Respondent No,1 shall transmit final report as to the course of action adopted through Deputy Registrar Judicial of this Bench.