1. MUNIR AHMED CHAUDHARY, J.--- This writ petition has been filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, through which the following prayer has been solicited.
2. "It is therefore most respectfully prayed that the writ petition may kindly be accepted and impugned instruction of respondent No.4 regarding marking of the Chemistry paper of SSC Part-I held in March/April, 2012 may kindly be declared to be illegal, void ab initio, against law, against facts, against the Board Calendar, against the Rules and may kindly be set aside and the respondents may very kindly be directed to check/correct the marks of the petitioner in Question No.6(A) of Chemistry held in the month of March/April, 2012 of SSC Part-I and a revised card may also very kindly be ordered to be issued. Any other appropriate relief which this court deems fit may also very kindly be granted with cost."
3. 2.Brief facts as stated in the writ petition are that the petitioner is a student of 10th Class in Kashmir Model College Mirpur and has passed SSC Part-I examination held in March/April, 2012. After the result, the petitioner moved an application to Controller Examinations for correction of marks of Urdu and Chemistry Papers. The paper of Urdu was rechecked and corrected and the petitioner got two more marks in Urdu while in the Chemistry paper, there was a difference in Urdu and English version of Question No.6(A). Respondent No.4 Controller Examinations Board of Intermediate and Secondary Education Mirpur issued a direction that answer of a student who solved paper according to Urdu versions shall be considered correct, whereas the answer according to English version was not considered correct. The petitioner tried to obtain copy of the said instruction but it was refused to be issued. The said instruction was without legal justification, void ab initio, against facts and Calendar of Board, against the rules, natural justice and fundamental and constitutional rights of the petitioner.
4. 3.It was further stated that the Urdu and English version of Question No.6(A) of Chemistry paper was as under:--- "Q.6(A) Describe Covalent Bond or Dative Covalent Bond with three examples.
5. In the English version of the question, the students had to describe Covalent Bond or Dative Covalent Bond with three examples. These are two different kinds of bonds. Whereas in Urdu version, the students had to define Co-ordinate Covalent Bond or Dative Covalent Bond with three examples. These are two different names of one and the same bond. The petitioner attempted English version of the question and described Covalent Bond with three examples according to the question. It was prayed as mentioned before.
6. 4.Parawise comments were submitted on behalf or the respondents, which were treated as written statement on request of the learned counsel for the respondents. It was stated in the written statement that the Examiner and the Members of the Committee who rechecked the paper were not impleaded as non- petitioners. The petitioner did not answer the question as it was put. The Board has no powers to remark any question according to Calendar of the Board. The said paper of the petitioner was rechecked and no mistake was found. There was no instruction issued by the Controller of the Examinations. The petitioner is not an aggrieved person. It was prayed to dismiss the petition.
7. 5.Arguments were advanced by the learned counsel for the parties. The learned counsel for the parties only repeated their version as taken in the pleadings. Mr. Babar Ali Khan, Advocate, the learned counsel for the petitioner referred the following precedents in support of his arguments.
8. PLD 2003 Peshawar 69 and 2011 YLR 1656 Ch. Muhammad Anwar Advocate, the learned counsel for the respondents referred the precedent 1996 SCM R 1872 in support of his arguments.
9. 6.After hearing the arguments, I have gone through the record available, the relevant law and the precedents referred minutely. It is an admitted fact that the students had an option to answer the question paper of Chemistry in English or Urdu version and the petitioner answered the said Question No.6(A) in English. The Board Authorities produced the relevant answer sheet of the petitioner, which was examined by this court. The said answer solved by the petitioner was not marked and that was crossed by the Examiner.
10. Without going into the details of the case, the documents produced by the respondents along with the written statement narrate that Remarks Committee has declared answer of the petitioner as partially correct. It was also observed by the Committee that the petitioner wrote the kinds of Covalent Bond instead of examples. But it came into notice of the court during inspection of the relevant answer sheet that the petitioner has written examples as well. The Examinerawardedzeromarkofthesaidquestion,whichisnot fairevenasobservedbythementionedRemarksCommittee.Now,theonlypointtoberesolvedisthatwhetherthesaid questionmayberemarkedornot?
11. Theprecedentreferredbythelearnedcounselfortherespondentshasnorelevancywiththefacts of the present case. In the said precedent, the papers were rechecked and no mistake was found in the papers. According to Calendar of the Board, the candidates appearing in the examinations conducted by the Board shall be permitted to get their answer books rechecked to the effect that:--- (1)Total has been rightly brought forward.
12. (2)No portion of any answer has been left unmarked.
13. (3)There is no mistake in the grand total on the cover of the answer book.
14. (4)The answer book has not been changed.
15. In the present case, the Remarks Committee of the Board has admitted that the petitioner has answered the question partially correct, which was marked as zero. Meaning thereby that the said answer has not been marked properly.
16. 7.IntheprecedentPLD2003Peshawar69,theHon'ble JudgeoftheHighCourtexaminedtheanswersheetsofthepetitionerandfoundthatmarkingofthe answer was disproportionate andinadequate.TheHon'bleJudgeofPeshawarHighCourt allowedtheconstitutionalpetitionandthepapersofthecandidate werere-checked/re- evaluatedbyanimpartialandcompetent Examiner.Inthesaidcase,theUniversityAuthoritiesalsoraiseda plea that the rules of the University did not allow re-checking of the answer sheets, but the High Court on the basis of inspection of answer sheets by itself and to meet the ends of justice allowed the writ petition. It has been held in the precedent 2011 YLR 1656 that the Re-checking Committee has got powers to re-check and to grant marks itself and can point out the failure and perversities of the Examiner. 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 Examiner. In the said case, the case was remanded by the Hon'ble Judge of the High Court to Chairman Board for redressal of the grievances of the petitioner.
17. 8.In the present case, the answer sheet was inspected by this court and it was found that the petitioner has written examples of the Covalent Bond while answering the question. The remarks Committee has also observed that answer of the petitioner was partially correct. Having in view the above mentioned circumstances, it is just and proper and to meet the ends of justice to allow the petition. The writ petition is accepted to the extent that Chairman Board of Intermediate and Secondary Education Mirpur shall consider the matter for redressal of thegrievancesofthepetitioner.TheChairmanshalldecidethe casewithin15daysfromthereceiptofthisorder.TheChairman while determining whether the answer of Question No.6(A) as attempted by the petitioner was correct or not? The Chairman shall be at liberty to have assistance from subject specialist or any other Examiner in the relevant subject. If the answer of the petitioner is found correct to any extent, the marks shall be awarded for the said question to that extent and added to the marks already obtained by the petitioner. No order as to the costs.