' IJAZ AHMED CHAUDHRY, C.J.---By virtue of this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the vires of Regulation No,23 of Chapter VII of the Calendar, Volume-I, 2002 of the University of the Punjab. In addition thereto the petitioner has prayed that respondents action regarding declaring the petitioner as 'Fail' in the subject of English Language in B.A examination held in the year 2010, be declared illegal, unlawful, unconstitutional and without jurisdiction and the respondents be directed to declare the petitioner as 'Pass' in the said paper after re-checking.
2. Succinctly, the facts, forming background of this petition, are that the petitioner appeared in B.A.
Examination in the year 2006 but he failed in the subject of Economics. He again appeared in Annual Examination 2010 but failed in the paper of English language. Resultantly, he appeared in Supplementary Examination 2010 but could not pass the paper of English Language. In a condition of utter disappointment, the petitioner approached the University authorities whereupon he was told that either he will have, to re-appear in the said examination or go for re-checking. The University authorities refused to re-evaluate the petitioner's papers in view of the bar contained in Regulation No,23 ibid; hence this petition.
3. Learned counsel for the petitioner contends that the bar contained in Regulation No,23 is not tenable being contrary to the fundamental rights of the citizens guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973; that the process of re-checking has been confined only to find out the correctness of the compilation of the result just to put a cover on the wrong-doings of the university authorities; that the petitioner passed the 'paper of English Language while he appeared in B.A. Annual Examination 2006, therefore, he had confidence to clear the said paper in the year 2010 as well but the university authorities have not provided him an opportunity of reevaluation, therefore, he has to suffer at the hands of the illegal acts of the university authorities; that since the paper checking staff are also from amongst the human beings, therefore, possibility of commission of error by them cannot be ruled out; that the courts always safeguard the rights of the citizens of the country while exercising its power under Article 199 of the Constitution;. Therefore, this court has ample power to declare the impugned Regulation null and void; that Regulation No,23 ibid is product of subordinate legislation, therefore, its vires can .Competently be adjudged by this court; that the procedure prevalent regarding re-checking is nothing but a futile exercise as the same runs against the principle of natural justice and that the future of the petitioner has been put at stake and in case the sought for relief is not granted he would suffer an irreparable loss in addition to incalculable injury.
4. Conversely, learned counsel appearing on behalf of respondents Nos.2 & 3 has argued that process of re-checking is being controlled under Regulation No,23 ibid and according to the said regulation reevaluation is barred for the reason that in case re-evaluation is allowed, the examination system would be rendered non-workable; that marking is done by qualified, competent and neutral examiners recommended by the concerned board of studies and approved by the Vice-Chancellor, therefore, their valuation is considered final and re-evaluation is prohibited; that according to the procedure prevalent at present regarding re-checking, on receipt of an-application for the said purpose, the answer books, award list and result sheets of the concerned candidates are checked and in case of any omission or error, the same is cured with the sanction of the competent authority; on application for re-checking by the petitioner, his both papers of English Language were checked and no mistake was found, accordingly, the petitioner was informed vide letter dated 29-8-2010; that it is not necessary that a student who passed any paper in the previous examination will pass the same in the next exam too, therefore; the passing of paper of English Language by the petitioner in the examination conducted in the year 2006,is of no avail; that the petitioner instead of accepting his inability to pass the paper of English language has opted to file the instant petition just to use it as a leverage to pressurize the university authorities to have result of his own choice; that the petitioner has chance to re-appear in the said examination till 2012, therefore, instead of filing this petition he should appear in the examination with full vigor; that in case re-evaluation is allowed, there would be no end rather a Pandora box would open; that the logic behind bar on re-evaluation is to maintain the secrecy regarding the examinations being conducted by the university; that Regulation No,23 was passed by the syndicate and the same by no stretch of imagination can be termed as contrary to any provision of the Constitution and that in case the sought for relief is granted, there would be no end to the litigation and the university authorities would not be able to take any examination to the logical end. In addition to his oral submissions learned counsel has also relied upon the cases reported as Abdul Hakim Hashmi v. Federal Public Service Commission through Chairman and 8 others (2002 SCM R 504) and Board of Intermediate and Secondary Education Lahore v. Saima Azad (1996 SCM R 676).
5. After hearing the learned counsel for the parties and going through the documents appended with this petition, I have noted that the petitioner has put a challenge to Regulation No,23 ibid on the ground that the same is violative of the fundamental rights enshrined in the Constitution of the Islamic Republic of Pakistan, 1973.
A perusal of the impugned Regulation makes it crystal clear that re-evaluation of the answer book is prohibited. The logic behind this embargo is that answer books are secret documents and in case the same are provided to the candidates or their representatives, the possibility of their tampering with or loss cannot be ruled out. Further, the process of checking of answer sheets is being carried out by competent, honest and impartial staff appointed with the approval of the concerned Board and the Vice-Chancellor. In the instant case the petitioner has not pointed out any malice or prejudice on the part of the examiner rather he has claimed that as he cleared the paper of English Language in the year 2006, therefore, he had the confidence that he would clear the same in the year 2010 as well. The said logic of the petitioner is beyond the comprehension of the man of prudent for the reason that it is not necessary that if a person passes a specific subject in one examination will definitely pass the same in the subsequent examination. The success of a candidate mostly depends upon his preparation for the examination. This being the reason I do not find myself in agreement with the learned counsel for the petitioner.
Insofar as the petitioner's prayer for declaring him pass in the requisite papers after re-evaluation of the answer book is concerned, suffice it to observe that in chain of authorities the Hon'ble Supreme Court has disapproved the said exercise. Even otherwise marking of numbers on answer sheets is a technical job, therefore besides the examiner no body else, including the candidate is in a position to adjudge his ability. Thus, the jurisdiction of this Court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 cannot be invoked for obtaining decision on merits which functionary alone was entitled to take under the relevant law. Thus, one thing is settled that this Court cannot order for re-evaluation of answer sheets of any candidate while exercising its power 'under Article 199 ibid. Likewise, this Court lacks jurisdiction to declare a fail candidate to be as pass.
A bird's eye view of the case-law cited by the learned counsel appearing on behalf of respondents Nos.2 & 3 also makes it Crystal clear that this Court lacks jurisdiction in the matter of re-evaluation of answer sheet of any candidate. The logic behind this approach is that if reevaluation is allowed then there would be no end to the litigation by candidates who remain unsuccessful in certain.
Papers and the University Authorities would not be able to take any examination to its logical end.
The discussion made in the foregoing paragraphs- leads me to conclude that Regulation No,23 has been enacted after approval by the Syndicate Committee of the University, thus the same cannot be declared illegal and unlawful by this Court merely for the reason that the same does not suit to any particular person. Further this Court cannot substitute the result of a failed candidate as successful while directing for re-evaluation of the answer book of a candidate. Resultantly, I see no force in this petition which is hereby dismissed.