M. Tabassum Aftab AM, J.--The captioned writ petition has been directed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following prayer is made by petitioners: "Therefore, it is most respectfully prayed that this writ petition may graciously be accepted and respondents be directed to include marks of Objective Structured Practical Examination (OSPE) of Pharmacology and Forensic Medicine in final award lists and consequently petitioners be declared as pass candidates in subjects of Pharmacology and. Forensic Medicine, by issuing corrected Detailed Marks Certificates for 3rd Professional MBBS of petitioners, in the best interest of justice.
Any other relief to which petitioners are entitled under law, justice and equity may also be awarded with costs to petitioners."
2. The petitioners Abeer Qamar and Momina Pervaiz, are first class state subjects, who are studying in 4th Professional MBBS at Poonch' Medical College, Rawalakot. The petitioners appeared in Annual Examination of MBBS 3rd Professional, held in December, 2015, however, Abeer Qamar, Petitioner No, 1, was declared failed in subject of Pharmacology, whereas, Momina Pervaiz, Petitioner No, 2, was failed in subjects of Pharmacology and Forensic Medicine. The claim of petitioners is that Controller of Examinations, Respondent No, 1, failed to add their marks pertaining to Objective Structured Practical Examination (OSPE), while, preparing' final award list. It is maintained that Petitioner No, 1, secured 39/60 marks, whereas Petitioner No, 2, obtained 33/60 marks in paper-II of Pharmacology (OSPE), however, without including the aforesaid marks, they were declared failed for want of 14 and 15 marks respectively. As per repeated requests of petitioners Poonch Medical College, wrote a letter dated 4th May, 2016, to take steps in this regard upon which Controller Examinations, Respondent No, 1, had replied vide letter dated 12th May, 2016, whereby he refused to accept the claim to add the said marks. Thereafter, Poonch Medical College (PMC) authorities held a meeting with Controller of Examinations, Respondent No, 1, upon which he solicited detailed marks of Objective Structured Practical Examination (OSPE) of petitioners and same were sent to him, however, no action was taken for rectification of their result. The petitioners due to delay on the part of Respondent No, 1, had to re-sit in Supplementary Examination and their result has not been declared as yet. The petitioners through the instant petition craved that by including marks of Objective Structured Practical Examination (OSPE), pertaining to subjects of Pharmacology and Forensic Medicine in final award list, they may be declared as passed candidate in the aforesaid subjects relating to 3rd Professional MBBS"
3. The writ petition has been resisted by Respondents No, 1 and 4 to 8, through written statement filed on 06th October, 2016. It is averred that petitioners after declaration of result manoeuvred the record in collusion with Respondents No, 2 and 3, hence, have not come in the Court with clean hands. It is further alleged that petitioners had not obtained required marks to succeed in examination, hence, they are trying to get undue favour by filing the instant petition, which is against law. It is averred that it was fault on the part of Internal and External Examiners, who jointly prepared the result/award lists, to whom petitioners have not arrayed as party in the line of respondents, hence, petition is bad in law. It is further stated that Controller of Examinations, Respondent No, 1, declared the result on the basis of record forwarded by the College Administration, hence, nothing was wrongly done on the part of answering respondents, hence, submitted for dismissal of writ petition.
4. The Controller of Examination and Principal Poonch Medical College, Respondents No, 2 and 3, however, have filed their separate written statement on 15th September, 2016. It is admitted by the aforesaid respondents that OSPE marks despite awarded by the concerned Departments of Pharmacology and Forensic Medicine of Poonch Medical College, were not included by Respondent No, 1, in the award list. It is further stated that a request was made to Controller of Examinations University of Azad Jammu & Kashmir, Respondent No, 1, for including the OSPE marks of petitioners vide Letter No, 884 dated 04th May, 2016, however, University authorities did not entertain request of the answering respondents. It is further explained that the concerned Departments and answering respondents had already awarded marks of OSPE to petitioners and in this regard original answer sheets were already submitted in Court, however, University authorities failed to include the said marks of OSPE in final award list, hence, craved for justice.
5. Barrister Humayun Nawaz Khan, the learned counsel for petitioners strenuously argued that marks granted to petitioners by Internal and External Examiners were not included in the final award list of the AJ&K University, without any lawful justification and in this regard he referred to and relied upon a letter (Annex-PD), appended with writ petition, through which Internal Examiner OSPE, Poonch Medical College, sent to Controller Examinations, Respondent No, 1, missing OSPE marks of Pharmacology of 6 students. He further contended that Internal Examiner submitted answer sheets of petitioners to Controller of Examinations, Respondent No, 1, which make it clear that petitioners obtained 33/60 and 39/60 marks, hence; after including the aforesaid marks, they passed 3rd year MBBS Annual Examination. The learned counsel emphasized that if petitioner's papers were missing, which was not transmitted within time by Poonch Medical College, to controller Examinations, University of AJ&K, then petitioners cannot be suffered due to act of the Medical College, hence, submitted for acceptance of writ petition.
6. Mr. Farooq Hussain Kashmiri, the learned counsel for contesting respondents, however, vehemently argued that petitioners were not granted marks in the domestic award lists provided by Poonch Medical College, hence, due to fault of the said Medical College, University cannot be blamed by any strength of imagination. He further contended that Internal and External Examiners wanted to extend undue favour to petitioners in collusion with Poonch Medical College. The learned counsel for contesting respondents, however, when confronted with original answer sheets of petitioners, placed by Internal and External Examiners on record, which were not accepted by the University, he voiced with vehemence that it was fault of the aforesaid Examiners and Medical College who failed to send answer sheets of petitioners alongwith other students, hence, submitted for dismissal of writ petition.
7. We have heard the learned counsel for parties at length; perused the appended documents as well as original answer sheets, plus award list filed by External Examiner from Counterfoil, made available with utmost care and have given our earnest thought to the points raised by the learned Advocates for parties.
8. A contemplate perusal of record reveals that Petitioner No, 1, Abeer Qamar, appeared in MBBS 3rd Professional Annual Examination, 2015, through Roll No, 2036, and obtained 82 out of 150 marks in written theory, however, secured 54 marks out of 150 in practical and viva, in the subject of Pharmacology & Therapeutics. The aforesaid petitioner, was declared as failed in the said subject through the impugned Result Intimation, issued by Controller of Examinations, Respondent No, 1, on 21st April, 2016. Same like manner, Petitioner No,
2. Momina Pervaiz, appeared in MBBS 3rd Professional Annual Examination, 2015, vide Roll No, 2038, who obtained 88 marks out of 150 in subject of Pharmacology & Therapeutics in written theory, whereas she secured 47 out of 150 marks in practical and viva. The aforesaid petitioner obtained 56 out of 100 marks in subject of Forensic Medicine & Toxicology and 39 out of 100 marks in practical & viva, hence, was declared failed in the subjects of Pharmacology and Forensic Medicine through the impugned Result Intimation, issued by Controller of Examinations, Respondent No, 1, dated 21st April, 2016. It appears from the record that Objective Structured Practical Examination (OSPE) marks of certain students, including petitioners, could not be included in the award lists, hence, Controller of Examination, Poonch Medical College, Respondent No, 2, wrote following letter to the Controller of Examinations, University of Azad Jammu & Kashmir, Muzaffarabad, on 04th May, 2016:- "POONCH MEDICAL COLLEGE RAWALAKOT AZAD KASHMIR Ph# 05824-960065, 960067, Fax:25824-960066 No, PMC-RXT/284/2016 To, The Controller of Examinations, University of Azad Jammu & Kashmir, Muzaffarabad.
Dated: 4/5/2016 Subject:- Incomplete practical marks of 3rd year MBBS Examination (Annual 2015-16) submitted by the Head of Pharmacology and Forensic Medicine. Department PMC Rawalakot.
Sir, As earlier discussed in a meeting on 4th may 2016 for the grievance of 3rd year students against their Annual result, I am here by filing a request on behalf of students and college authority the break up of practical and viva marks be obtained from all the Head of Department in written format, so that situation becomes clear and gets resolved in time.
Break up of marks is given as below:-- PharmacologyForensic Medicine 1) Viva Voce: internal / External Examiner:70 Marks 40 Marks 2) Practical Notebook: 05 Marks 10 Marks 3) Internal assessm ent: 15 Marks 10 Marks 4) OSPE: 60 Marks 40 Marks It may further be added that the internal examiners / Heads of Departments have to submit the answer sheets along with other parts of the practical examination marks in a tabulated form showing the breakup of the practical examination marks 'as cited above as per PM & DC rules.
In case the issue is not resolved, I feel that the students will not be reluctant even going to the Court to seek justice for their grievances.
Prof. Dr. Rahim Bangash, Controller of Examination Poonch Medical College Rawalakot"
9. The aforesaid letter was answered by Controller of Examinations, University of Azad Jammu & Kashmir, Respondent No, 1, to Principal, Poonch Medical College, Rawalakot through script dated 12th May, 2016, which speaks as follows:- THE UNIVERSITY OF AZAD JAMMU & KASHMIR CHELLA BANDI CAMPUS, MUZAFFARABAD. (EXAMINATION DEPARTMENT)
No, 1849/Exams/2016 ' Date: 12.05.2016 To Principal.
Poonch Medical College, Rawalakot.
Subject: Incomplete practical marks of 3rd year MBBS Examination (Annual 2015-16) submitted by the Head of Pharmacology and Forensic Medicine Department PMC Rawalakot.
Dear Sir, Assalam-O-Aliqum With reference to Letter No, PMC-RKT/284/2016 Dated .04.05.2016, it is stated that the result of MBBS 3rd Prof. Annual Examination 2015 in the subjects (Practical/Viva) of Pharmacology and Forensic Medicine have been thoroughly rechecked. It has been noted that the results issued in favour of the candidates are correct and no error of tabulation have been found. The breakup of marks shown in the letter has already been considered during examination resulting the award having total of 150 marks in the subject of Pharmacology and 100 marks in the subject of Forensic Medicine, respectively. It's a proved phenomena the whole procedure is carried out according to the rules and regulations and there is no doubt in the results issued in favour of the candidates. It is important to mention here that only the failure students have shown a find of doubt on the results which has no factual ground. Please direct the concerned students to prepare themselves for the supplementary examination accordingly.
(Dr. Khawaja Ansar Yasin) Controller of Examinations Ph:05822-960400 Fax:05822-9604 76"
10. It appears from record that Assistant Professor Pharmacology Department Internal Examination, Objective Structured Practical Examination (OSPE), Poonch Medical College, sent missing OSPE Marks pertaining to the aforesaid subject to Controller University of Azad Jammu & Kashmir, which was not accepted on the ground that petitioners and others were already granted marks of practical and viva in the award lists submitted by the Medical College. Even in this regard original answer sheets pertaining to subject of Pharmacology of Roll No, 2036, of petitioner, Abeer Qamar, and that of Roll No, 2038, of petitioner, Momina Pervaiz, transmitted to University, were also not accepted. The aforesaid original answer sheets were placed on record of this Court which have been perused by us which support the claim of petitioners.
11. The Controller of Examination and Principal, Poonch Medical College Rawalakot, Respondents No, 2 and 3, in their written statement categorically admitted the claim of petitioners that awarded marks pertaining to OSPE, by the Departments of Pharmacology and Forensic Medicine were not included in the final award list of the University. The Controller of University was also requested by the Medical College through letter dated 4th May, 2016, about "incomplete practical marks of 3rd year MBBS Annual Examination 2015", which was declined through script dated 12th May, 2016. It is pertinent to observe here that written statement filed by Respondents No, 2 and 3 is duly supported by an affidavit dated 07.09.2016, filed by Controller of Examination, Poonch Medical College, Rawalakot. The External Examiner Pharmacology also filed a duly sworn affidavit to Controller of Poonch Medical College, which is reproduced as under:-- "To Prof. Dr. Rahim Bangash Controller of Examination, Poonch Medical College, Rawalakot.
Subject: Missing of External Examiner Marks.. Pharmacology.
Memo, Reference to your Letter No, PMC-RKT/285/2016, dated 13.05.2016 on the subject noted above, it is stated that I had conducted Practical/Viva examination of students of 3rd Prof. MBBS Poonch Medical College Rawalakot, as external examiner in the subject of Pharmacology, nominated by the University of AJ & Kashmir.
As per record, I hereby submit the Counterfoil of the result of Practical/Viva examination of the students of 3rd Prof. MBBS, Poonch Medical College Rawalakot, in the subject of Pharmacology, held on 29th and 30th December, 2015, (Counterfoil of result is attached). The result/marks sheet, in original, was handed over to Prof. Dr. Jalal-ud-Din, Head Department of Pharmacology Poonch Medical College Rawalakot on 30th December, 2015. The award of marks of Internal evaluation and Note Book in their job.
Sincerely Yours, (PROF. DR. JAMSHED ALI) External Examiner Pharmacology Dated.
16.05.2016."
12. Similarly Internal Examiner also appended a duly sworn following affidavit in support of claim of petitioners.
"AFFIDAVIT I, Dr. Zamir A. Siddiqui, Assistant Professor Pharmacology Deptt, Poonch Medical College, Rawalakot. CN1C No, 421016747376-1, do hereby solemnly affirm by Oath and declare that:--
(a) Annual result of Pharmacology, 2016 was mistakenly deficient of marks of certain parts i,e, (OSPE+ Practical Notebook) in case of these students i,e, Aheer Qamar and Momina Pervez. OSPE is mandatory part of practical examination according to PM ,& DC rules.
(b) Whatever I stated in this affidavit is true and correct according to my best knowledge and belief.
(Dr. Zamir A. Siddiqui)
Assistant Professor Pharmacology Department, Poonch Medical College, Rawalakot. AJK"
13. The aforesaid affidavits filed by Controller of Examination of Poonch Medical College, as well as by External & Internal Examiners have not been controverted by Respondents No, 1 and 4 to 8 or any other concerned Officer of the University through counter affidavit. Although, an affidavit alongwith written statement of the aforesaid respondents of one Jamil Ahmed, Superintendent of Police, has been appended which pertained to a Service Appeal titled "Jamil Ahmed vs. Azad Govt. & others" pending before the Service Tribunal, having no nexus with the contents of the instant writ ;petition.
It appears that contesting respondent, drafted the written statement in a very hasty and careless manners. As per Rule 38 of the Azad Jammu & Kashmir High Court Procedure Rules, 1984, writ petition is ordinarily liable to be decided on the basis of affidavits which speaks as follows: "38. All questions arising for determination under Rules 31 to 36 shall be decided ordinarily upon affidavits and documents but the Court may direct that such questions as it may consider necessary be decided on such other evidence and in such manner as it may deem fit and in that case it may follow such procedure and may pass such order as may appear to it to be just."
A similar point came under consideration before the Apex Court in case titled "Muhammad Sharif Khan vs. Mirza Fazal Hussain and others" [1993 SCR 88], wherein, at Page 91 of the report it was held as under: "The pieces of evidence which have been considered by the learned Judge are the decree and the possession chit relating to Qamar-uz-Zaman's plot but there is another important, factor which escaped the attention of the learned Judge. We find that Muhammad Sharif while filing his writ petition duly filed an affidavit in support of the contents of the petition, meaning thereby that he claimed on oath that the disputed land was partly in his possession and also that the decree and the allotment chit mentioned above were in respect of the plot in dispute. The contents of this affidavit were not controverted by Fazal Hussain or other respondents before the High Court by filing a counter affidavit. Ordinarily this is considered sufficient in a writ petition prima fogies proof and if not rebutted by cogent evidence it becomes conclusive proof. This aspect of the matter was over-looked by the learned Judge in the High Court. Apart 'from that the reasons on which the conclusion was drawn, as mentioned above, are also not sustainable."
The same view was reiterated by the Apex Court in case titled "Public Health Engineering Division and, another vs. Aurangzeb Khan" [2008 SCR 590]. At pages 601 and 602 of the report, it was opined as follows: "18. The counsel for respondent has drawn our attention towards another aspect, that the petitioner filed an affidavit in. Support of the contents of the writ petition. Since the allegation of ownership was not denied and there was no rebuttal of affidavit, as such it becomes conclusive proof.
The fact of ownership is proved by the affidavit. .So there was no need of further proof. No doubt the Court' can require a person to produce further proof in presence of the admission but in the instant case the learned Judge in the High Court was satisfied that the fact of ownership is admitted and issued the direction correctly...."
A similar view was expressed in case titled "AJ&K Council & 3 others us. Messers Paidar Builers" [2011 SCR 595], wherein, at pages 600 and 601, it was observed as follows: "10. From the above, it transpires that the learned counsel has drafted the written statement in a very hasty manner in his own hand. The contention of the learned counsel for the appellants before the trial Court has been supported by affidavits in which the learned counsel for the appellants has stated that he sustained injuries due to road accident in his car that is why he could not contact the appellants to get the written statement verified/approved by them. Application for amendment in written statement filed by the appellants before the trial Court is supported by affidavit. The objections filed by the respondents on the application for amendment before the trial Court are not supported by an affidavit which amounts to admission of the contents of the application filed by the counsel for the appellants for amendment in the written statement."
14. We, however, after perusal of record have no hesitation to observe here that Azad Jammu & Kashmir University, prepared result of MBBS 3rd year of petitioners due to mistake of Poonch Medical College as deficient marks of certain parts i,e, OSPE and practical Notebook, were not included in the award lists of the Medical College However, due to act of the Medical College, petitioners cannot be suffered, therefore, they are entitled to equitable relief of writ jurisdiction.
15. The crux of above discussion is that by accepting the instant writ petition, the official Respondents No, 1 and 4 to 8, are hereby directed jointly and severely to announce result of petitioners after, including the Objective Structured Practical Examination (OSPE) marks pertaining to subjects of Pharmacology & Therapeutics and Forensic Medicine & Toxicology. The original answer sheets of petitioners, placed on record shall be transmitted by Registrar of this Court, after keeping facsimile thereof on file, to Controller of Examinations, University of Azad Jammu & Kashmir, Respondent No, 1, for doing needful. The award list produced by External Examiner, Khyber Medical College, Peshawar, shall be returned to him by the office. The Controller of Examination and Principal, Medical College Poonch, Rawalakot, Respondents No, 2 and 3, however, are warned to be careful in future about forwarding deficient award lists to the University otherwise law will take its own course. The writ petition is accepted in the manner as indicated herein above, with no order as to the costs.