' MAMOON RASHID SHEIKH, J.--- The brief facts giving rise to this petition are to the effect that the petitioner applied for and competed in the Combined Competitive Examination-2011 of the Punjab Government for recruitment to the posts of Provincial Management Service etc., 2011, conducted by the Punjab Public Service Commission (respondent No,1). The petitioner was declared eligible to compete in the written examination. The petitioner, therefore, sat for the written examination held in 2012 under Roll No,24206. The result of the written examination was announced on 14-12-2012. The petitioner was, however, declared to have failed in the paper of English Composition (Paper-ID, therefore, the petitioner was not held to be eligible to appear for the interview component of the examination. The petitioner applied for re-checking of Paper-II and was informed by respondent No,1 through letter No, PPSC-DA-II-PMS-2011/07-SSA, dated 3-1-2013, that his answer sheet of Paper- II has been re-checked thoroughly and no error in counting and marking has been found. Feeling aggrieved the petitioner has filed the instant petition.
2. The learned counsel for the petitioner submitted that the petitioner is a lawyer by profession and has a bright academic record to his credit. The petitioner has attended reputable institutions wherein the standard of instruction has been English. The petitioner won a Gold Medal which was awarded by his law college in recognition of his outstanding performance in the LL.B. Examination.
In the examination in question the petitioner was awarded 27 out of 100 marks in Paper-II whereas in the paper of English Essay Writing (Paper-I) the petitioner obtained 50 out of 100 marks which marks are amongst the highest obtained by candidates in Paper-I. This goes to show that the petitioner is well conversant with the English language and has a high caliber of understanding thereof. In the circumstances where the petitioner had passed Paper-I with high marks it is not understandable as to how the petitioner failed in Paper-II. Paper-I involves essay writing whereas Paper-II involves paragraph writing, precis writing, explaining idiomatic phrases (all similar to essay writing) which a person who had scored high marks in an essay -based paper could have easily attempted and obtained high marks. The marks obtained by the petitioner in Paper-II are not commensurate with the high marks obtained by the petitioner in the other papers. The marking of Paper-II has been done in a perverse manner and by abuse of authority. The questions of Paper- II are subjective in nature; therefore, a candidate attempting the same should be given some marks whereas the petitioner has reason to believe that his answers to two questions have not been checked by the examiner. Respondent No,1 has taken the stand that the Punjab Public Service Commission Regulations, 2000 (the Regulations) only allow for re-checking of papers if there is any error in counting or marking. The Regulations do not allow for reevaluation. This stance of respondent No,1 is against the law laid down by the Hon'ble Supreme Court of Pakistan in the judgment reported as Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others (PLD 1992 SC 263) wherein it has been, inter alia, held that where fraud is alleged a case of further inquiry in terms of the judgment reported as The Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) is made out. Pleaded that the answer script of the petitioner may be summoned so that it can be demonstrated that there is perversity and abuse of authority in the matter by the examiner of Paper-II. Further relied on the judgments reported as Ms. Shakeela v. University of Peshawar through Vice-Chancellor and another (PLD 2003 Peshawar 69), Rabial Riaz v. Board of Intermediate and others (2011 YLR 1656), Muhammad Usman Qayyum v. University of Engineering and Technology, Lahore and 5 others (2004 SCMR 606), Farmanullah Khan v. Controller of Examination, Karachi University (2010 MLD 85), Khurshid Ahmad v. Bahauddin Zakariya University, Multan and 3 others (1999 CLC 694) and Miss Avdhani Meena Ramchandra and others v.
Maharashtra State Board of Secondary and Higher Secondary Education, Pune and and others (AIR 1981 Bombay 126).
3. The departmental representative controverted the stance of the learned counsel for the petitioner and submitted that the Combined Competitive Examination is held by respondent No,1 on a regular basis.
' Thousands of candidates apply each year and only around a couple of hundred are selected after a detailed process which entails initially vetting of forms: written examination and interviews of those candidates who pass the written examination. This shows that the examinations are held by respondent No,1 in a fair and impartial manner. Further ubmitted that the examinations are conducted through eminent and qualified examiners who do not harbour any hostility or animosity against the candidates.
4. Mr. Muhammad Azeem Malik, the learned Additional Advocate-General, Punjab, submitted that the mere fact that the petitioner had scored highly in the other papers does not necessarily mean that he should have also passed Paper-II with high marks. Candidates can and do fail in one paper whereas they have obtained very high marks in the other papers. Further submits that this Court in the exercise of its constitutional jurisdiction normally does not interfere in such like matters as institutions as well as candidates are bound by the rules/regulations which have the force of law.
The judgments cited at the bar by the learned counsel for the petitioner are not attracted to the case as no case of criminality, irresponsibility or fraud and abuse of Regulations has been made out. Even otherwise the petitioner had no vested right to have his paper re-evaluated.
5. After hearing the contentions of the learned counsel for the petitioner, the departmental representative and the learned Additional Advocate-General and also on the strength of the judgments cited at the bar by the learned counsel for the petitioner it was directed that the petitioner's answer script of Paper-II be produced. In compliance thereof the answer script was produced on 9-1-2013. It was identified by the petitioner as well as his learned counsel as to be that of the petitioner. After going through the answer script it was observed that the last question which the petitioner had attempted was question No,1 of the paper which carried 30 marks. The examiner had graded the petitioner on the basis of the rough draft of the reply, however, the formal answer had not been graded and had been classified as an over attempt. Moreover, the marks awarded for the answer to question No,1 had been reduced from 11 to 6. The matter was, therefore, referred to the Chairman of respondent No,1 for further consideration and the petition was adjourned for 11-1- 2013.
6. On 11-1-2013 the departmental representative appeared and submitted that the Chairman has declined to intervene in the matter as the Regulations do not allow for re-evaluation.
7. As the learned principal counsel for the petitioner was not available that day the petition was adjourned to 15-1-2013.
8. On the adjourned date the learned counsel for the petitioner submitted that a clear-cut case of perversity has been made out. There are glaring mistakes in the evaluation of the paper. The rough draft had been checked and graded whereas the formal answer had neither been checked nor graded at all, hence, leading to the conclusion that one answer of the petitioner had not been graded at all. This is a fit case for, re-evaluation to be done by an eminently qualified independent examiner. The question of an over attempt by the petitioner does not arise. Moreover, the petitioner was initially awarded 11 marks which were reduced to 6. The learned counsel further contended that this shows bias, perversity and abuse of authority in checking the petitioner's Paper-II by the examiner and further consideration of the matter by the Chairman. Further submits, under instructions, that he would be satisfied if only the formal answer to question No,1 is directed to be re-evaluated by an eminent independent examiner. The learned counsel concluded by reiterating his reliance on the judgments referred to above.
9. The departmental representative submitted that the Regulations do not allow for re-evaluation of any paper. If the contention of the learned counsel for the petitioner is accepted then it will open floodgates and there would be no end to the number of candidates seeking reevaluation of their papers, thus, leading to hardship for respondent No,1 with the result that candidates would keep on demanding that their papers be re-evaluated again and again. Further submits that the Chairman is competent under the Regulations to ensure that there is no irregularity in the examination process. Contends that 5701 candidates took the written examination out of which 527 qualified. No other candidate has complained except the petitioner. All-questions have been marked and graded and the marks obtained by the petitioner have been properly tabulated. On Court's query admits that albeit the Rules do not allow for re-evaluation yet there is no express prohibition against re-evaluation either. He, however, submits that since the Regulations do not allow for re- evaluation therefore, no re-evaluation is allowed.
10. Khawaja Salman Mahmood, the learned Assistant Advocate-General submitted that the Regulations do not allow for re-evaluation of papers, therefore, the petitioner has no vested right to have his papers re-evaluated. Further submitted that Courts normally do not intervene in such like matters primarily for the reason that if Courts start intervening in such like matters it will open the door for every unsuccessful candidate to challenge the result of his examination in Court, thus, spiraling examining authorities and/or educational institutions into unending litigation. In brief invoked the floodgates argument.
11. Heard. Record perused.
12. The learned counsel for the petitioner has tried to make out a case of perversity and abuse of authority by the respondents in evaluating Paper-II of the petitioner. It has been contended that all the questions answered by the petitioner have not been checked and/or the marks of the petitioner's answer to question No,1 had been reduced from 11 to 6 which was not warranted in the circumstances of the case. The main plank of the arguments of the learned counsel for the petitioner has been based on Mst. Salma Afroze's case (supra) wherein it has been, inter alia, held that: "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 grounds fully established."
13. The question of re-evaluation of examination papers also came up for consideration before the Hon'ble Supreme Court in the case of Board of Intermediate and Secondary Education, Lahore v.
Saima Azad (1996 SCMR 676) and the Hon'ble Supreme Court laid down the criteria in such like cases, inter alia, to the following effect: "We have heard the learned counsel for the parties and are of the view that the High Court while exercising jurisdiction under Article 199 of the Constitution was not justified in summoning the answer books of whole lot of the examinees in order to evaluate and find out whether, the examiner had carried out the marking of numbers in the case of respondent/examinee correctly or not? The marking of numbers on answer book is a technical job performed by experts which the High Court is not expected to undertake in exercise of its power of judicial review under Article 199 of the Constitution. The jurisdiction of High Court under Article 199 of the Constitution is principally meant 20 for correcting the jurisdictional error in the order and proceedings of tribunals and executive authorities. This jurisdiction cannot be invoked for obtaining decisions on merits which the functionaries alone are entitled to Lake under the law. Similarly, the plea of discrimination raised by the respondent in her petition before the High Court has to be decided by the Court on the basis of admitted and proved facts brought before it without entering into the process of roving enquiry into disputed facts by the Court.
' We are, therefore, of the view that the learned Judge in Chambers, before passing the impugned order should have first examined the scope of proceedings before him and consider the provisions of relevant statute under which relief could be granted to the respondent.
' The learned counsel for the respondent while supporting the order. Of High Court, vehemently contended that as the career of respondent is at stake and no remedy is available to her under the relevant statute, the High Court in order to do complete justice can call for answer book of the respondent and others in order to compare whether the marking was carried on correctly in the case of respondent.
' 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 litigation and bringing the whole system of examination in vogue, at stake. The solemnity of educational institutions and process of examination cannot be sacrified 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 justiciable 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."
14. In the instant case firstly no ex facie disclosure of criminality or fraud and indeed abuse of Regulations in marking of Paper-H has been pointed out by the petitioner. The learned counsel for the petitioner has, however, contended that a case of perversity and abuse of authority is made out firstly by the examiner in neglecting to check and grade the formal answer given by the petitioner to question No,1 of Paper-II and secondly by the Chairman in refusing to have Paper-II re- evaluated. A question has also been raised regarding the reduction of the petitioner's marks from 11 to 6 in the petitioner's answer to question No,
1. The learned counsel for the petitioner, however, stopped short of alleging criminality or fraud against the examiner or the Chairman. Indeed, the petition is also silent on this score.
15. On examining the facts and circumstances of the case on the touchstone of Mst. Salma Afroze's case (supra) and Saima Azad's case (supra) one comes to the conclusion that even if an ex facie case of criminality or fraud had been made out, which is not so in the instant case, this Court would still be first required to determine its jurisdiction in the matter as on the basis of the ratio of Saima Azad's case (supra) marking of answer papers is a technical job best left to experts and this exercise cannot be expected to be undertaken by this Court in the exercise of its power of judicial review under Article 199 of the Constitution of the Islamic' Republic of Pakistan, 1973. The said jurisdiction is primarily meant for correcting jurisdictional errors in the impugned orders/proceedings of Tribunals or Executive Authorities. Moreover, this Court cannot invoke its jurisdiction by giving decisions on merits which the functionaries alone are entitled to make under the law.
16. In the instant case firstly as said above no ex facie case of criminality or fraud has been made out and secondly no jurisdictional error has been pointed out. Moreover, the facts brought before this Court are disputed and this Court cannot enter into the exercise of determination thereof by conducting an inquiry or indeed recording evidence. It would, therefore, seem that this Court would be unable to exercise its power of judicial review under Article 199 of the Constitution in favour of the petitioner. The contention of the learned counsel for the petitioner that this Court should direct the respondents to have the answer sheet of Paper-II re-evaluated is, therefore, repelled.
17. Turning to the question of reduction of the petitioner's marks in the answer to question No,1 of the paper from 11 to 6, even if it were to be accepted that the marks were wrongly reduced the petitioner would still not be successful as with the addition of the 5 deducted marks the total marks obtained by the petitioner would come to 32 which figure falls shy of the pass marks of 33 by 1 mark and there is no provision in the Regulations for award of grace marks.
18. I also find force in the argument of the learned Additional Advocate-General that if this Court were to intervene and direct reevaluation of the paper this would result in an un-ending chain of D litigation bringing the whole system of examinations of respondent No,1 at stake. I am fortified in my view on the basis of Saima Azad's case (supra).
19. Under the circumstances, I am not persuaded to intervene in the matter with the result that this petition fails -and is dismissed with order as to costs.