' SALMAN HAMID. J.--- The petitioner has challenged her Nuclear Medicine Paper I and II of 17-3- 2010. (the Paper) and result dated 3-4-2010 thereof amongst others on the ground that the Paper had at least 18 typographical errors and 3 wrong questions with the result that her failure therein be declared as unlawful etc.
2. The facts of the case, deducible from the petition are that the petitioner' is a MBBS doctor and M.S. In Nuclear Medicine from Diplomatic Certification Board, Nuclear Cardiology. (USA) and a member of the American Society of Nuclear Cardiologist. She is a gold medallist in M.S. Nuclear Medicine, awarded by JPMC in a Symposium on her Papers of research. The petitioner to her credit has 12 publications, published nationally and internationally in different journals; is also a degree- holder of the American Board of Nuclear Cardiology. The petitioner got recommendation from FCPS in the year 2005 in the field of Nuclear Medicine and started working at the Kiran Hospital, Karachi for specialization under supervision of the respondent No,5, namely Dr. Shahid Kamal in that year.
In the year 2007 to save her time, the petitioner joined the Shaukat Khanum Cancer Memorial Hospital. Respondent No,5, according to the petitioner with this arrangement somehow got annoyed with her. In the meanwhile Dr. Masihuzzaman became supervisor of Kiran Hospital and, when the petitioner again started her training in that Hospital, she came under his supervision (Dr. Masihuzzaman). With this new arrangement the respondent No,5 got further antagonised and became hostile towards the petitioner so much so that in the year 2009 he with great reluctance and after creating much hindrance sent the dissertation of the petitioner, which, according to her was unwarranted. The hostile behaviour of respondent No,5 also deprived the petitioner from sitting in Nuclear Medicine examination of 2009 whereas other three students of her batch were permitted to sit in such examination Thus, the petitioner lost her one precious year because of the highhandedness of respondent N&.5 and respondent No,6.
3. Ms. Raana Khan appearing for the petitioner submitted that while setting the Paper, the, fundamental principles in respect thereof were compromised. It was alleged that the Paper was settled and checked by the same Doctors who were the supervisors of the petitioner and of the other candidate. She also alleged that the Paper did not cover the entire course, taught and not even a single question from Nuclear Cardiology which was 40% of Nuclear Medicine was asked in the Paper. The reason, according to learned Counsel, for avoiding questions of Nuclear Cardiology, was that she was an American Board Certificate holder in Nuclear Cardiology. It was also alleged that usually FCPS set question papers in an elaborate manner as is evident from previous ones.
However, the Paper was altogethei on a different pattern and deliberate typographical errors and wrong questions were set.
4. Learned counsel urged that the quality and standard of the Paper was highly objected to and criticised by many doctors in the field, both nationally and internationally, including Dr. Masihuzzaman who was supervisor of the petitioner at one time. It was further argued that only two candidates i.e. The Petitioner and one other candidate appeared for the examination who was a fellow of respondent No,4. It was argued that since the Paper of Petitioner and other candidate had been checked by respondents Nos.4 and 5 and that the respondent No,5 was already perturbed and antagonized by the petitioner, they (respondents Nos.4 and 5) deliberately failed her Present petition was preferred for redress of her above grievances.
5. On the other hand Mr. Munir Malik appearing for respondent No,6 submitted that the petition was not maintainable as the College of Physicians and Surgeons of Pakistan (CPSP) is not an institution, performing functions in connection with affairs of the Federation as no funds are allocated from the Federal Government. The petitioner has approached this court with unclean hands. It was also disputed that because of the change of supervisor of the petitioner there was any hard feelings. It was denied that the petitioner was ever hindered by respondent No,6 in the pursuit of her education.
6. Rebutting the argument that there were discrepancies and errors in the Paper, it was argued that the process of Paper setting was not only transparent but based on stringent requirements to ensure that capable and knowledgeable professionals come in the field of Nuclear Medicine. The allegation of favouritism was met by arguing that two sets of papers were made which were deposited with the respondent No,6's paper bank. It was mentioned that in the paper bank besides new set of papers, papers from previous years, were also available. Hence, it was argued that the Paper for examination from the set of papers, settled by the supervisors therefore may very well be from last paper available in the paper bank. This process according to the learned counsel, is adopted to ensure that even the paper setters do not know which paper is likely to be handed over to the student. It was argued that in the, present case the Paper was set by three professionals namely (1) Dr. Javed Irfanullah, Director NORI, Islamabad, (2) Dr. Shahid Kamal, Head of Department of Nuclear Medicine, JPMC and the Secretary Faculty of Nuclear Medicine, CPSP (3) Dr. Khalid Nawaz, Dean, Faculty of Nuclear Medicine, CPSP, who are the three senior most representative and specialists in their field. Therefore allegation of violation of the rules and principles was refuted.
7. Meeting the argument that there were no questions from Nuclear Cardiology which covers 40% of the course, it was explained that question setters were not bound to follow the previous adopted pattern. It was urged that Nuclear Cardiology does not even make up 5% of the Paper. However, with regard to typographical errors and wrong questions, it was stated that typographical errors were human errors and therefore, same may occur. It was mentioned that the candidate under such circumstances was within his/her right to object in writing or seek clarification from the chief invigilator who was bound to record and respond to ;he candidate's grievance and clarify the same. It was however, argued that the typographical mistakes were easily discernable by the candidate and not a single objection either in writing or verbally was received.
8. Regarding allegation of the same persons being supervisor and paper setter, it was argued that there was no bar in setting and checking the paper by one and the same person as the Paper was confidential and no name or roll number of the candidate was mentioned on it. It was informed that only a code was assigned to ensure that the examiner should have no idea about the candidate and enable him to mark the Paper independently. It was also mentioned that examiners were based in different parts of the country. It was also explained that the examiners do not mark on the paper itself but maintain a tabulation sheet and that upon receipt of such tabulation sheets by the respondent No,6, if any, a variation of marks by up to 20% is found, then the paper is got evaluated by a third examiner to ensure fair assessment. In the case of the petitioner there was no such variation.
9. It was denied by Mr. Munir Malik that the Paper of the petitioner was checked by respondent No,4 (Dr. Khalid Nawaz) and respondent No,5 (Dr. Shahid Kamal). It was specifically mentioned that petitioner's Paper was checked by Dr. Saeeda Asghar, Advisor to Chairman, Institute of Nuclear Medicine, Lahore and Dr. Mujahid Khalid Ali, Head of Department of Nuclear Medicine, AFIP, Rawalpindi. Therefore there was no question or even an iota of discrimination or bias against the petitioner. In response to the argument that Dr. Shahid Kamal (respondent No,5) had any towards the petitioner, it was categorically mentioned that the petitioner remained under his supervision who not only signed her attendance record and log book promptly but also gave her a good training certificate for the tenure she remained under him. It was also mentioned that not only that the petitioner's thesis were completed under first half of the training in supervision ship of Dr. Shahid Kamal (respondent No,5) but was also accepted in the first attempt by him.
10. It was also argued that the petitioner had secured a total number of 113.25 marks out of total 200 marks i.e. 56.6% of the total marks in the written examination. It was stated that passing percentage was 60%.
As an alternative argument, it was .Argued that from 20 questions, at best, three questions .Were seriously objected to in which questions the petitioner secured 5, 8 and 3 marks respectively. It was argued that if these questions are excluded from the written examination, the Paper would comprise of a total of 17 questions. The total available marks would therefore be 170. It was explained that in these 17 questions the petitioner secured only 57.21 % marks which again was less than passing percentage i.e. 60%. In the light of this explanation it was mentioned that out of 17 questions, the Petitioner passed in only 10 questions and failed in 7 questions. If the case of the petitioner is gauged from this angle, she would come in the category of "failed candidate". Arguing on such plain, the respondent No,6's counsel asserted that the petition be dismissed.
11. Learned D.A.-G. And learned A.-G., Sindh adopted the arguments of learned counsel for respondent No,6.
12. In rebuttal to the above arguments, Ms. Khan, learned counsel for the petitioner with regard to the maintainability of the petition submitted that since the affairs of the respondent No,6 are controlled by the Federation of Pakistan through the Ministry of Health, the petition is maintainable.
It was also argued in rebuttal that because of highhandedness of the respondents, the petitioner falls within the meaning of an, "aggrieved person", as envisaged under Article 199 of the Constitution of Pakistan 1973 and therefore the petitioner was entitled to invoke the constitutional jurisdiction of this honourable Court.
13. It was reiterated that because of biased behaviour of the respondent No,5, the petitioner was put at a loss of one academic year as she had registered in the year 2005 and ought to have completed her training in the year 2009. It was also argued in rebuttal that the guidelines of Regulations provide that, "no person shall be appointed as a paper setter or examiner whose relative is appearing at the examination and each examiner shall be required to submit a declaration that he has not coached any student or students for the examination nor shall he engage himself in the work during the period of his appointment as an examiner". This guideline/regulation, according to Ms. Khan, the learned Counsel for the Petitioner, was blatantly violated.
14. With regard to the quality and standard of the Paper learned counsel for the petitioner in rebuttal produced emails/letters of various eminent doctors/personalities in the field of Nuclear Medicine who amongst others included (1) Dr. Durre Sabih, Director, MINAR (Multan Institute of Nuclear Medicine & Radio Therapy), (2) Dr. Babar Imran, Tamgha-e-Imtiaz. (TI) Consultant Physician, King Khalid University, Saudi Arabia, (3) Dr. Ghulam M. Shah, King Fahad Hospital. Saudi Arabia, (4) Dr. Rashid Hashmi, Nuclear Medicine Consultant, Australia, (5) Dr. Jamshed Bomanji, Head Institute, Nuclear Medicine University Col lege London, (6) Dr. Khaled Alkhawalpeh, Nuclear Consultant, Germany, (7) Dr. GOPI, St: Barthelaw Hospital, London, and (8) Dr. Jawaz Zabahm, Head Nuclear Medicine, Nigeria. It was argued by reading out the e-mails of the above eminent doctors that the Paper was acutely criticised as to the low standards of respondent No,6. It was therefore reiterated that though the respondent No,6 was boastful about high standards of education the Paper and observations of these eminent professors depicted a picture of the respondent No,6 and its standards in absolute contrast.
15. It was also disputed that Nuclear Cardiology constitutes only 5% and not 40% of the syllabus. It was mentioned that Nuclear Cardiology includes three chapters and therefore Paper setters were bound to set the Paper according to the structure of syllabus which in the present case was not followed. It was also argued in rebuttal that Question No,1(d) had a typographical error, question No,2 concerning Gamma Cancer was wrong as there was no such type of cancer, question No,3(e) regarding position emission was typographically wrong. Questions Nos.6 and 8(b) were also wrong as there was nothing like "plantation efficiently" in Nuclear Medicine Syllabus. Question No,11 also suffered, from typo error. Question No,12(e) was again a wrong as there was no thyroid scan with radioactive material in a pregnant female. It was mentioned that as a matter of fact if it is injected in a female pregnant by mistake, then it would be in medical terms, "an abortion". Question No,14 had two typographical errors whereas question No,14(b) was altogether a wrong question, Question No,16 again had typographical error. Question No,17 regarding Post-thyroidectomy was again wrong question. Management depends upon extent of thyroidecomy. Construction of question No,18(a) was wrong and therefore not understandable while question 18(b) was repetition of question 18(a) regarding patient preparation. Question No,19 had two typographical erroRs,
16. In rebuttal to the allegation that the petitioner had the liberty to ask questions from the chief invigilator, it was mentioned that he was not a subject specialist. Besides that, it was argued that he was not authorized to correct typographical errors and make wrong questions right. As per instructions provided to the candidates by Examination Cell, it was clearly dictated that "questions or conversations with invigilator is not allowed". Therefore the argument that the petitioner could have sought clarification from the invigilator was totally refuted being unfounded. It as also disputed by the learned Counsel that no objections were received on the Paper. It was pointed out that Dr. Masihazzaman had communicated to the Examination Cell in writing regarding the standard of the Paper. It was also argued that there were variations of marking of more than 20% and under such circumstances, rules provide that the Paper be sent to the third examiner which in the present case was not sent.
17. It was also mentioned and reiterated that the petitioner was first class first position holder and a gold medallist and that there are only three main worldwide examination boards. i.e. The American.
Board, the European Board and the Pakistani Board. It was reiterated that from the American Board and the European Board the petitioner got positions. Therefore, it was highly unlikely that the petitioner could fail in the Pakistani Board. It was also mentioned in rebuttal that the respondent No,6 having admitted that, "at best three questions out of 20 can be seriously objected to, these being questions 2, 6 and 18", is a manifestation of the fact, admitted on the part of the respondent No,6 that in fact these three questions were wrong and/or could have been seriously objected to.
Therefore, it was urged that under the criteria settled by Certification Board of Nuclear Cardiology
(CBNC) recognized and practiced internationally, the petitioner became entitled to full marks on flawed questions. Since in the present case there were at least three questions wrong or as per respondent No,6's own showing, "seriously objected to", and as many as 18 typographical errors in the paper, the petitioner was entitled to full marks and such ought to have been awarded to her.
The arguments that the petitioner having failed to get 60% marks in 7 questions out of 17, after 3 questions which according to the petitioner were wrong are taken out, still the petitioner secured only 57.21% was brushed aside. It was argued that the percentage of over all questions paper is always looked into and not on the basis of criteria propounded by learned counsel for the respondent No,6. It was also argued that if 3 questions would have been correctly mentioned, the petitioner would have definitely secured far more marks than she actually secured in such questions which would have definitely improved her percentage by more than 56.6% and could have easily met the target of 60% passing percentage.
18. The criteria of appointment of CPSP examiner was also seriously challenged. It was pointed out that according to the Condition No,2 of the terms and conditions of CPSP for examiner, no examiner could be of less than the experience of ten yeaRs, However, in the present case, according to the respondent No,6's own showing none of the examiners had ten years teaching experience or equal qualification. According to the petitioner, Dr. Shahid Kamal was awarded Honorary FCPS Degree in 2003 and Dr. Khalid Nawaz was awarded FCPS in August/September, 2010, and Jawed Irfanullah does not even have FCPS or equivalent qualifications. Dr. Hafiz Muhammad Naeem, Director CENUM, Lahore, the Convenor of examination is also not FCPS holder and did not even have the requisite teaching experience. It was argued that all these lapses on the part of respondent No,6 show nothing but violation of the criteria settled by the respondent No,6 itself. It was, therefore, reiterated that the petition merits to be allowed, as prayed.
19. Heard arguments and perused the record.
20. It was claimed by the respondent No,6 that it maintains high principles of medical profession for promoting special medical practice. It was also claimed that it consists of highly acclaimed professionals who have attained a niche for themselves in the medical profession. It was also emphasized by respondent No,6 that it is greatly regarded and is respected for its professionalism, expertise, integrity and high standard of postgraduate medical education and training. It was argued and stressed by the respondent No,6 that a team of paper setters, consisting of highly acclaimed professional is available. In the backdrop of such claims, it was strenuously argued that there was no question of suspicion about quality and standard of education of respondent No,6.
However in our opinion the quality and standard of the Paper manifests to the contrary as admittedly it does contain grammatical mistakes as well as that of content.
' We are at a loss to understand the argument, advanced by the learned Counsel for the respondent No,6 that typographical errors could have been ignored and/or were easily understandable and the candidate who has studied for four years could have answered the questions conveniently.
' In our opinion a student in such a situation, when confronted with three wrong questions could not have easily figured out the correct answeRs, However and quite astonishingly learned counsel for respondent No,6 suggested that if these questions are taken out from the total number of 20 questions, still the petitioner would have failed. We do not at all subscribe to such an unrealistic and harsh approach and/or solution and that too at the cost of the future of a bright student. To us this was no way of putting a wrong on the right path, especially when such wrong was an act of a person at the giving end.
21. On all fours it was an admitted position, if not candidly at least impliedly, that three questions in the Paper were "seriously objected to". Therefore a question would arise why only these three questions out of 20 were objected to? Whether these were unclear, wrongly and incorrectly asked or had serious construction error, making no sense which made the candidate confused who was already under tremendous pressure of the examination itself? And whether at such time was the petitioner required to "discern" as was suggested by the respondent No,6 in its counter-affidavit and come up with correct question and also answer it correctly meeting the high standard of respondent No,6. Straightforward and simple answer is in the negative. The student was within her rights to expect clear and unambiguous questions, free from all errors, grammatical or otherwise and was not expected to be confronted with questions which could be "seriously objected to" and require, "discretion".
22. Under these circumstances and applying the principles of equity and fairplay and also keeping in mind international standards that if a flaw is found in a question, then an examinee will be placed at a disadvantaged position, we hold that the examiner should suffer because of a flaw in the question and not the examinee. Since in the present case three questions were wrong or were not decipherable and could be "seriously objected to" and were not clearly understandable and that admittedly there were various typographical errors, the petitioner was placed at a disadvantaged position and ought to have been compensated, more particularly, when she missed the mark only by 0.4%. Therefore, we hold that the petitioner be accommodated accordingly that she be declared as passed in the written Examination.
23. We may also observe that had the petitioner been an average student or below the standards of the respondent No,6, then she would have never been able to get admission with it. The record would show that the petitioner has been an outstanding student throughout and has passed both American and European Boards with distinction and is also a gold medallist. We see such a student as a future asset to Pakistan who has been given a step motherly treatment by respondent No,6. In the case of Wan Nadir v. University of Punjab (1996 CLC 550), cited by the learned counsel for the petitioner it was observed by learned Lahore High Court that educational institution exercises paternal jurisdiction over its students and therefore such institutions were not expected to give step motherly treatment to its students. We are also of the opinion that in the present case the petitioner has been treated by the respondent No,6 in a "step motherly" way and that too without any fault on her part. For its redress she had to approach this court. This could have very conveniently been reconciled by the respondent No,6.
24. Coming specifically to the criteria for appointment of respondent No,6's paper setters and examiners, we would observe that since the number of students for these examinations is always one or two,' as disclosed by the respondent No,6 in its additional statement, it would be in the interest of every one, especially the students that the supervisor of such student should not be a paper setter and examiner. Since there is always a possibility of allegations being raised, as has been raised in the present case, that the paper was leaked out by the supervisors (respondents Nos.4 and 5) to the candidate who was under his supervision. Hence the paper be got set and checked by a checker other than the supervisors who were not the supervisors of the students appearing for examination. This would be in the interest of the students, which is always paramount. The other aspect which we think needs to be addressed is that in this era of computerization it would be best that the papers are checked through computer process rather than manually, ruling out the possibility of allegation of bias and favoritism. We therefore strongly suggest that respondent No,6 switch to this system.
25. This brings us to the qualification of the persons, setting and checking the papeRs, It was pointed out by the petitioner's counsel that from respondent No,6's own assertions (Annexure C to the statement by respondent No,6 dated 15-11-2010) a paper setter and examiner must be a CPSP approved supervisor; must have 10 years teaching experience after acquiring FCPS or equivalent postgraduate medical qualification; must have acted as an observer in two CPSP examinations; the examinership should start in intermediate module (MCPS) and DCPS examinations and then go up to FPCS examinations; as a rule, the convener of the examiners panel should have 15 years teaching experience after acquiring major qualifications and must have been an examiner in that subject on four earlier CPSP examinations; the maximum tenure as an examiner should be for 8 examinations for all types of CPSP examinations followed by a break of at least two examinations. It was categorically mentioned in Annexure C that this criteria was the minimum laid down requirement by PMDC for appointment of examiners in postgraduate medical examinations. As against this minimum requirement, disclosed by the respondent No,6 it self, it was mentioned by the learned counsel for the petitioner, that though there was stringent requirement of minimum ten years experience of the examiner, none of the examiners had ten years teaching experience or equal qualification. This assertion of the petitioner was not denied or disputed by respondent No,6.
26. According to the petitioner, Dr. Shahid Kamal was awarded honorary FCPS degree in 2003 and Dr. Khalid Nawaz was awarded FCPS in August/September, 2010, and Dr. Jawed Irfanullah does not even have FCPS or equivalent qualifications. Dr. Hafiz Muhammad Naeem, Director CENUM Lahore, the convenor of examination is also not FCPS holder and did not even have the requisite teaching experience which shows nothing but violation of the criteria settled by respondent No,6 itself. This state of affairs of respondent No,6 speak volumes. In absence of denial of above position by respondent No,6 the paper; its setting and checking has suffered from inherent defects. However since we have already directed the respondent No,6 to accommodate the petitioner by giving her passing marks because of their own shortcomings and save her precious academic year, we refrain ourselves from scrapping the Paper altogether. We would direct the respondent No,6 that in future the standards and criteria set by itself and the methodology suggested by us in paper setting and its examination/ checking and marking be followed strictly.
27. As to the maintainability of the petition, suffice it to record that since the petitioner is an aggrieved person, reasons whereof have come on record explicitly, the petitioner falls within the pale of the provisions of Article 199 of the Constitution of Pakistan 1973. The petitioner was competent and entitled to maintain the petition. Respondent No,6's affairs are directly under scrutiny and control of the respondent No,1, therefore, again on this score the petition merits consideration. Besides alternative and adequate remedy, the concept of efficacious remedy is also to be kept under consideration, more particularly when precious academic years of a bright student were at stake to be saved, efficaciously. We therefore, hold that the petition is maintainable under the constitutional jurisdiction of this court as a remedy for the redressal of her grievance was not promptly and efficaciously available to her under the ordinary civil jurisdiction.
28. At this stage and keeping in view the fact that viva voce of the petitioner was held under respondent. No,4, being chief examiner thereof and the fact that she has failed it, equity and fair play demands that respondent No,4 who was also the supervisor of the other candidate keep F himself aloof from future viva voce of the petitioner to rule out further aggravation. Therefore in order to save the petitioner from being frustrated, we direct the respondent No,6 that the examiners of the petitioner in the up-coming next two viva voce be the examiners other than the respondents 4 and 5, acceptable to the petitioner and to the respondent No,6. This would only show transparency and unbiased approach and attitude of the respondent No,6 towards the petitioner.
29. Petition stands disposed of in terms of the above orders/ observations.