TARIQ JAVAID, J.---This order shall dispose of the instant petition as well as Writ Petition No,8242 of 2010 (Bisma Tahir and 6 others v. Chairman, Board of Intermediate and Secondary Education Sargodha and 3 others) through this single order, as common question of law and facts are involved.
2. The grievance of all of the writ petitioners, as alleged, is that the marking of questions by the external examiner in Urdu paper was perverse, which resulted into detriment of the petitioners. All of petitioners maintained that the question No,4 having 15 marks in Urdu paper consisted of two parts with an option to attempt either of those parts. The petitioners attempted the first part.
According to the learned counsel for the petitioners, the right answers attempted by the candidates were crossed and no marks were awarded to them. The petitioner in Writ Petition No,4633 of 2010 has further assailed the marking of question No,3 as well. It was argued that under the dictum laid down by the Hon'ble Supreme Court Pakistan in Board of Intermediate and Secondary Education, Lahorethrough Chairman and another v. Mst. Salma Afroze and 2 others (PLD 1992 Supreme Court 263) the petitioners were entitled to the relief being claimed by them.
Notice was issued to the respondents. As Per report submitted by the respondents it was admitted that the rechecking committee after checking the answer of the writ petitioner in Writ Petition No,4633 of three marks were omitted from count which were added. With regard to grievance of all of the petitioners for failure of the examiner to mark question 4, the re-checking committee found that no marks were awarded. The finding of the Committee was endorsed to the Board of Intermediate and Secondary Education, Gujranwala, as the said external examiner was under the control of Board of Intermediate and Secondary Education, Gujranwala. It is maintained that the said examiner returned the answer book with the remarks that re-evaluation of the answer book is not allowed as per judgment rendered by the Hon'hle Supreme Court in the case of Board of Intermediate and Secondary Education, Lahore v. Saima Azad (1996 SCM R 676).
3. In said judgment the Hon'ble Supreme Court was called upon to determine whether this Court in its constitutional jurisdiction was justified in summoning the answer books or not? It was argued that this Court could summon the answer books for comparison. The contention was repelled and it was observed as under:-- "We are unable to accept the above contention. The contention of the learned counsel for the respondent if accepted will lead to dangerous consequences, as it will open the door for every unsuccessful candidate to challenge the result of his examination in Court thus involving the educational institutions into unending and unethical litigations and bringing the whole system of examination in vogue, at stake. The solemnity of educational institutions and process of examination cannot be scarified on the altar of expediency. As earlier stated by us, the jurisdiction of the High Court under Article 199 of the Constitution is meant for correcting the errors of jurisdictional nature. Therefore, in order to succeed, the respondent must first satisfy that the issue brought by her before the Court is justifiable under Article 199 of the Constitution. The learned Judge in Chambers, therefore, could not pass the impugned order without first determining these basic questions regarding jurisdiction of Court in the matter. We, accordingly, accept this appeal, set aside the impugned order and direct that the writ petition filed by the respondent will be disposed of by the learned Judge in Chambers without asking for production of the whole lot of answer books examined by the examiners who examined the answer book of respondent. There will be no order as to costs in the circumstances of the case".
4. The perusal of record reveals that the above judgment being relied upon by the examiner is of no avail to him. In present case the question is altogether different. The question is not whether this Court can compare the marking or not. Rather the question is whether the examiner can cross the answers without granting any marks, an error of commission, which is admitted by the re-checking committee? My answer to the proposition is No, It cannot be done. The re-checking committee clothed with the powers to re-check, though not authorized to grant marks itself can point out the failures and perversities of the examiners. If it is found that the answers were 'Correct and the examiner has wrongly refused to mark the same, the re-checking committee can proceed against such a recalcitrant examiner under the rules. In case of Board of Intermediate and Secondary Education, Lahore v. Salma Afroze and 2 others .(PLD 1992 SC 263) the Hon'ble Supreme Court observed, "He had similarly made disclosure about the calculated perverse marking of other papers as well.
Such detail was altogether lacking in the cases of the respondents before us. There was no ex facie disclosure of criminality, irresponsibility or fraud and abuse of regulations in marking the papers.
The stages in which such a controversy has to be examined are that first the identity of the script or answer-book is to be established by visual inspection of it by the candidate. He must own it. It must be his. Next the perversity, the abuse, the criminality in evaluating it should be particularized by complete disclosure before the Chairman as well as before the Court. The person/examiner accused of having indulged should be impleaded as a party in Court and allowed to meet the allegations. If the Court finds ex facie that there is good ground made out for further inquiry in terms of Muhammad Fazil Khan's case PLD 1975 SC 331, it should itself examine and in the next stage get the answer-books examined after annulling the award of marks on ground fully established."
4-A. In view of the dictum laid down in above judgment the learned counsel for the Board of Intermediate and Secondary Education, Gujranwala contends that he has no objection if the case is remanded to the Chairman, Board of Intermediate and Secondary Education, Sargodha for expeditious disposal of the grievance of the petitioners in terms of the above quoted Supreme Court judgment.
5. The learned counsel appearing on behalf of the petitioner has no objection except that the admission in M.B.B.S. classes are likely to be made within a few days and the pendency of the case may result into petitioners detriment. In view of the urgency, as all of the petitioners have secured exceptionally high marks in their intermediate examinations, the case is remanded to the Chairman, Board of Intermediate and Secondary Education, Sargodha for redressal of the grievances of the petitioners. In terms of the judgment passed by the Hon'ble Supreme Court in Board of Intermediate and Secondary Education, Lahore v. Salma Afroze and 2 others (PLD 1992 SC 263). The 'Chairman shall decide the case within two days from receipt of this order. The Chairman while determining whether the answer to question No,4 as attempted by the petitioners were correct or not shall be at liberty to have assistance from subject specialist or any other examiner in the relevant subject. If it is found that the conduct of the examiner is perverse, then the Chairman shall take action against the examiner under the rules. The petitions are remanded with no order for costs.