The above titled writ petition has been filed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, to challenge the result prepared for lower class course examination held on 26.09.2011 to 02.10.2011.
2. It has been averred in the memorandum of this petition that the petitioner is an M.A, LL.B hailing from District Muzaffarabad and is currently serving as Constable in the Police department since 10.04.1999. Examination of lower class course session 7 was held at Police Training School Muzaffarabad during 26.09.2011 to 02.10.2011.
The petitioner participated in the examination and as per his averment, attempted all the 7 questions carrying 75 marks in total in 2nd last paper. It has been stated that one of the 7 questions carried 15 marks and rest of 6 questions carried 10 marks each. It is the stance of the petitioner that he attempted questions on the original answer sheet and obtained on t-extra sheet for solution of rest of the paper. As a result, the petitioner attempted 1(1/2) question on the additional answer sheet, which included Question No. 1 carrying 15 marks. The petitioner claims that soon after the written examination came to an end, he came to know about the fact that his additional answer sheet is missing from the record, whereupon he contacted Principal Police Training School Muzaffarabad and requested him to manage recovery of his lost extra answer sheet. The petitioner claims that Non-Petitioner No. 3 was sympathetic and promised to recover the missing answer sheet. To augment his contention, the petitioner further claims that the fact of obtaining extra answer sheet is entered in the attendance sheet recorded on 01.10.2011. The petitioner further claims that on 08.10.2011, Principle Police Training, Non-Petitioner No. 3 summoned and told him that his missing extra answer sheet has been recovered. The petitioner claims that Non-Petitioner No. 3, in order to verify the fact, asked the petitioner to write down main points of the question answered in extra sheet in his presence, so that the claim of the petitioner may be verified. The petitioner wrote down main points of Question No. 1 carrying 15 marks in presence of Non-Petitioner No. 3 and other police officials. The petitioner claims that Non-Petitioner No. 3 was satisfied with claim that recovered answer sheet is that of the petitioner. The petitioner has further stated that on 26.10.2011., the non-petitioners held a ceremony for distribution of prizes to the successful candidates of lower class examination Session 7 and to the surprise of the petitioner, he was placed at 3rd position. The petitioner received the certificate along-with cash prize under protest because of disciplinary restraints but soon after that he contacted Non-Petitioner No. 3 and complained that his result has not been properly evaluated, whereupon, Non-Petitioner No. 3 told him that his missing additional answer sheet has been procured and he has been awarded 12 marks for the disputed question.
Thereafter, the petitioner moved a written application to Non-Petitioner No. 3 on 28.10.2011 for rechecking/ re-evaluation of his papers but Non-Petitioner No. 3, instead of satisfying the petitioner, wrote a letter to SSP Muzaffarabad on 18.11.2011 for initiating a disciplinary action against him. The petitioner finally moved an application before the Inspector General of Police on 29.12.2011 but it has been kept in abeyance. The petitioner claims that attitude of the non-petitioners is highly objectionable. As per his view, he is entitled to get 25 marks for the questions answered on additional sheet. The petitioner has finally prayed to the Court to issue direction to the non- petitioners to recover his missing additional answer sheet and in case of failure, the petitioner be entitled to 25 marks for that answer sheet. He has further prayed to direct the non-petitioners to re- evaluate and recheck the total numbers by setting aside the impugned result list. It has also been craved by the petitioner to restrain the non-petitioners from initiating any disciplinary action against the petitioner.
3. The petition was admitted for regular hearing on 30.1.2012 and the non-petitioners were required to file written statements. Meanwhile, the petitioner filed an application for amendment in the writ petition, which was accordingly granted and amended writ petition was filed on 20.04.2012.
4. SSP/ Principal Police Training School Muzaffarabad rebutted the claim of the petitioner. It has been stated in the comments that examination of lower class course Session 7 was held and a committee was constituted to supervise the examination. According to date sheet annexed, paper of Police Practical was held on 01.10.2011 whereas examination for the paper of Medical Jurisprudence was held on 02.10.2011. Non-Petitioner No. 3, the Principal Police Training School Muzaffarabad has further stated that the petitioner did obtain an extra answer sheet besides the original answer sheet. He attempted 6 questions on the impugned answer sheet and used the extra answer sheet for Question No. 1 containing 15 marks. The petitioner attempted 7 questions in total carrying 75 marks and succeeded in obtaining 51 marks out of total. It has been rebutted that Non-Petitioner No. 3 ever called the petitioner and asked him to write down the answer on extra sheet on 08.10.2011. It has further been elaborated that an official ceremony was held on 26.10.2011 wherein the position holders were awarded certificates. The petitioner obtained 3rd position in fire test whereas he got 3rd position in all round events. The petitioner was award Rs. 500/- in cash besides a certificate. The petitioner got certificate and the cash prizes in presence of all the participants of the lower class course-examination and never objected to it. It has also been stated that after the prize distribution ceremony the participants of lower class course-examination were given benefit of 10 days recess and the petitioner never filed any kind of protest. It has also been stated that Questions No. 1 and 2 disputed by the petitioner carried 25 marks in total and the petitioner obtained 18 marks out of 25. The non-petitioner claims that story of misplacement of answer sheet is an afterthought and mala-fide. Non-Petitioner No. 3 has further stated that the answer sheet of the petitioner has been examined and it has been found that all the attempted questions have been awarded marks. The petitioner secured 51 marks out of 75 and the result has been prepared in accordance with law. It has been agitated by Non-Petitioner No. 3 that the petitioner being an employee of a disciplinary force has criticized the function of his seniors in black and white and the remarked that "I am not satisfy with the staff that checked papers". The non-petitioner is of the view that according to Chapter No. 14(7) of the Police Rules, a subordinate in police force is barred from passing such written comments. It was in these circumstances, when SSP Muzaffarabad has been moved to take disciplinary action against the petitioner.
5. Sajjad Ahmed and Muhammad Arif, Non-Petitioners No. 4 and 5, filed written statements and raised some preliminary objections that the impugned order relates to terms and conditions of service of the petitioner, which cannot be assailed through writ petition. It has also been agitated on behalf of the private non-petitioners that a permanent injunctions restraining the official non- petitioners to take action against the petitioner under law, cannot be granted. Further more that some controversial questions of facts have been raised in the writ petition, which cannot be agitated in extra ordinary jurisdiction of the High Court. It has further been alleged that claim of the petitioner about change/misplacement of his answer sheet is an afterthought, which has never been agitated before the departmental authorities. The private non-petitioners claim that the petitioner is not an aggrieved person because of the fact that he lags behind Non-Petitioners No. 4 and 5 by 6 and 34 marks, respectively. It has been elaborated that the petitioner obtained 76% marks in the examination as a whole, so the claim of entitlement to 25 marks as a whole bears no weight. If the petitioner is awarded 76% marks out of 25, the difference comes out to 1 mark only. It has also been agitated by the private non-petitioners that the writ petition suffers from ladies as it has been filed after a period of 3 months of the examination. On merits, the stance of the petitioner has been rebutted by Non-Petitioners No. 4 and 5 and, it has been claimed that the private non- petitioners obtained 1st and 2nd position in accordance with their performance. The petitioner though having degrees of M.A and LL.B could not get No. 1 position, according to his performance in the examination.
6. I have heard learned counsel for the parties and learned Additional Advocate General and also perused the record of the ease.
7. It is relevant to mention here that record of the examination was sent for from the official non- petitioners, which is before the Court for resolving the issue. Learned counsel for the petitioner has elaborated the arguments raised in the writ petition and has claimed that the petitioner being highly qualified is entitled to be placed at No. 1 position in the examination. He has further stated that the official non-petitioners are responsible for failure to procure the additional answer sheet used by the petitioner and he cannot be penalized for the act of the official authorities. Learned counsel has cited following case law: i. Miss Zubaida Khatoon Vs. Mrs. Tehmina Sajid Sheikh and others [2011 SCMR 265]; Punjab Textbook Board Employees Association through president Vs. Punjab Textbook Board through Chairman and 2 others [2004 YLR 1014); iii Azad Government and 3 others Vs. Farhat Shaheen [2007 SCR 62]; iv. Azad Government & 2 others Vs. Syed Tayyab Gillani & 14 others [2009 SCR 415]; v. Muhammad Latif Butt Vs. Shehtab & 4 others [2009 SCR 432]; vi. lqbal Razzaq Butt Vs. Abdus Salam Butt and 6 others [1998 SCR 387]; vii. Azad J &K Government and others Vs. Ch. Abdul Majeed and others [2004 MLD 844 SC AJ&K); viii. Muhammad Ashfaq and another Vs. Senior Member Board of Revenue and 5 others [2011 MLD 1844]; ix. Moose Bhunji (through legal heirs) Vs. Bashwani Sales & Service Ltd. and another [PLD 1982 Karachi 940]; x. Khalid Mehmood Vs. Collector of Customs, Customs House, Lahore [1998 SCMR 1881]; xi. Fedetation of Pakistan Vs. Ali Ahmed Qureshi [2000 CLC 1551 (2) Karachi]; and xii. Muhammad Hanif Vs. Mst. Robins Kausar [2000 CLC 1551 (1) Lahore].
Leaned counsel for the petitioner has further stated that no new evidence is required to resolve the issue and that lathes is no ground for disbursing justice in a writ petition.
8. Conversely, learned Additional Advocate General relied upon the detailed written comments filed on behalf of the official non-petitioners and stressed that the petitioner is not entitled to the remedy sought. Mr. Abdul Rasheed Abbasi, learned Advocate for the private non-petitioners reiterated the stance taken in his written statement and elaborated the points individually by claiming that the writ petition is not maintainable on law as well as facts.
9. Learned counsel for the parties could not place on record any procedure provided for conducting written examination in the Police Department and particularly, the procedure regarding re-marking and re-evaluation of the answer sheet. I have to base upon the procedure adopted by the sister organizations in this behalf. The Intermediate Board, Universities, Public Service Commission and the alike institutions contain a specific provision in their procedure that answer sheet cannot be re-marked. A right to re-check the answer sheet is provided to the candidates in such like institutions but it is limited to scrutinize the fact that an answer is not left un-marked or there is a mistake in calculating the aggregate marks of the candidate. So, the stance of the petitioner that his answer sheet should have been reevaluated or re-marked does not find support from any procedural law. The controversy raised in the memorandum of writ petition is a bit different. The petitioner claims that he attempt 5(1/2) questions on the original answer sheet provided for the examination and remaining 1(1/2) questions were attempted on the extra answer sheet taken for the purpose. The petitioner claims that his extra answer sheet got missing and Non- Petitioner No. 3, in order to hide this mistake, called the petitioner and procured another answer from the petitioner. A perusal of the answer sheet of the petitioner transpires that he attempted 7 questions in total, during the examination and obtained 12, 6, 7, 4, 7, 8, 7 marks for Questions No. 1 to 7, respectively. Question No. 1 carries 15 marks in total and the petitioner has been Awarded 12 marks for answer to Question No. 1, whereas he has been awarded 6 out of 10 marks in Question No.
2. It further transpires that the petitioner attempted Question No. 2 on last page of the original answer sheet, this question relates to spot inspection of a road accident and preparation of the site plan. The petitioner has drafted a cite plan of the road accident in Question No. 2 and has provided details of 5 points mentioned in the plan. Apparently, answer to this question is complete in itself.
However, the petitioner has written at the end of the page word " CAA?" in brackets but the continued answer found nowhere on the next page obtained as extra sheet. The examiner has recorded the remarks that remaining part of Question No. 2 is not available on the continued page.
However, 6 out of 10 marks have been awarded to the petitioner for answer to Question No. 2. As remarked earlier, the answer provided by the petitioner looks complete in its nature; he has been rightly awarded marks for this question. The extra sheet used by the petitioner for resolving Question No. 1 contains 2 leafs and the petitioner has been awarded 12 out of 15 marks for this question. This question relates to registration of an FIR. The first page of the extra sheet used by the petitioner shows that date has been overwritten. It looks that the date registered in the answer sheet has been amended from 08.10.2011 to 01.10.2011 by overwriting the same. Although it is not for the Court to scrutinize that whether the marks given by the examiner for this question are proper yet it can be seen that the petitioner has been awarded 12/15 marks for this question, which are apparently satisfactory. I agree with the proposition raised by learned counsel for the private non- petitioners that in the present situation the petitioner lags behind the Non-Petitioners No. 4 and 5 by 5 and 33 marks, respectively and if the aggregate of 76% obtained by the petitioner is kept into consideration, the petitioner does not still stand up to the mark.
10. It would not be out of place to mention here that petitioner could not disclose any mala-fide or ulterior motive on part of the official non-petitioners for putting him behind the Non-Petitioners No. 4 and 5 on the Scoreboard. The petitioner could not show any grudge or malice by the non- petitioners against him. Even if a wrong has been committed by the official non-petitioners to benefit the Non-Petitioners No. 4 and 5, that has also not been disclosed by the petitioner.
11. So far as. prayer to the extent of restraining the official non-petitioners from taking any departmental action against the petitioner is concerned, it cannot be concurred with for the reason that an authority cannot be stopped to do an act provided by law. However, the petitioner is at liberty to seek redressal of his grievance if at all an adverse order is passed against him.
For the forgoing reasons, the petition is dismissed being devoid of force.