RAJA SAEED AKRAM KHAN, J.---The captioned appeal by leave of the Court has arisen out of the judgment of the High Court dated 29.01.2018, whereby the writ petition filed by respondent No,1, herein, has been accepted.
2. The precise facts of the case are that respondent No,1, is a student of F.Sc. (Pre-Engineering) in Al-Ghazali College of Sciences, Kotli, He appeared in the examination of F.Sc. (Part-I), held by the Board of Intermediate and Secondary Education (BISE), Mirpur, (to be referred as Board, hereinafter), in May/June, 2017 and obtained 461/520 marks. In the English paper, he obtained 64 out of 100 marks. He filed an application for re-checking of the answer sheet of the said subject.
The respondent claimed that his application was dismissed on the ground that the grand-total of the answer sheet has correctly been calculated and no portion has been left un-marked. The respondent filed a writ petition before the High Court, claiming therein, that his paper has not rightly been marked by the Examiner, therefore, the authorities be directed to rev-evaluate his English paper. After necessary proceedings, the learned High Court vide impugned judgment dated 26.02.2018, accepted the writ petition and directed the Chairperson of the Board, Mirpur, to reevaluate the paper through an academician of high repute, hence, this appeal by leave of the Court.
3. Syed Nishat Kazi, advocate, counsel for the appellant, submitted that the judgment passed by the High Court is contrary to the statutory provisions of law. He submitted that in the light of the principle of law enunciated by the superior Courts as well as the statutory provisions of law, after final examination, no answer-sheet can be re-evaluated. He added that the learned High Court while handing down the impugned judgment, has not taken into consideration that only on the application filed in the prescribed manner, if any error is found in the grand-total of the marks or any question or portion of the paper is found unmarked, etc, such like discrepancy can be rectified but the whole answer-sheet cannot be re-evaluated. He further added that the direction issued by the High Court is against the spirit of law, which is not sustainable. He forcefully argued that if the practice of re-evaluation is allowed, then each and every student shall apply for re-evaluation, which is neither practically possible nor can be allowed under law but this important legal aspect of the case escaped the notice of the High Court. The learned counsel referred to and relied upon the cases reported as Abdul Baseer Tajwar v. A&K Public Service Commission and 2 others [2016 SCR 1599] and Tahir Saeed Qureshi v. Board of Intermediate and Secondary Education Sargodha and 3 others [1996 SCM R 1872].
4. On the other hand, Ch. Mehboob Elahi, Advocate, counsel for respondent No,1, strongly opposed the arguments addressed by the counsel for the appellant while submitting that the judgment passed by the High Court is perfectly legal, which is not open for interference by this Court. He added that the academic record of the respondent-student, shows that he is one of the brilliant students, who secured the highest marks in the other subjects, whereas he was awarded only 64 out of 100 marks in the English paper. He added that injustice was done to the respondent and he was constrained to knock the door of the Court for redressal of his grievance. In continuation of the arguments, the learned counsel submitted that to meet such like situation, the superior Courts have ample power of judicial review to undo injustice, as the career of the respondent is at stake.
The learned counsel referred to and relied upon the cases reported as University of Punjab through Vice-Chancellor Lahore and another v. Mrs. Ruhi Farzana and 3 others [1996 SCM R 263], Khurshid Ahmad v. Bahauddin Zakariya University, Multan and 3 others [1999 CLC 694], Ali Zain-ul- Abadeen v. Controlling Authority AJ&K Board of Intermediate and Secondary Education, Mirpur and 5 others [2014 CLC 890], Ms. Shakeela v. University of Peshawar through Vice-Chancellor and another [PLD 2003 Peshawar 8] and Rabial Piaz v. Board of Intermediate and others [2011 YLR 1656].
5. We have heard the learned counsel for the parties and gone through the impugned judgment along with the other record made available.
6. The respondent, who is a student of F.Sc. (Pre-Engineering), appeared in the examination of F.Sc.
(Part-I), held by the BISE, in the month of May/June, 2017 and obtained 461 out of 520 marks. In the English paper, he obtained 64 out of 100 marks. He felt aggrieved that he was given less marks in the English paper than his expectation, in the light of the percentage of marks in the other papers, and that the Examiner did not tally his record and the result. He, therefore, moved an application for re-checking of the answer sheet of the said subject and while accepting his request, the paper was rechecked in his presence. Admittedly nothing was found wrong during rechecking of the paper.
On this, the respondent filed a writ petition before the High Court on the ground that injustice has been caused to him while awarding less marks in the English paper, whereas his percentage in the other papers is very high. The writ petition was accepted by the High Court in the following terms:-- "In the light of what has been discussed above, the writ petition is accepted and Chairperson BISE, Mirpur is directed to re-evaluate the petitioner's English paper through an academician of high repute. Needful may be done within a period of one month of receipt of this order."
7. Leave to appeal was granted while formulating the point whether according to the statutory provisions dealing with the subject-matter, a direction for re-evaluation of the paper of any candidate can be issued? To appreciate the proposition, we have examined the relevant provision of law, i,e, rule 17, Chapter 6 of the Calendar of Board, which provides that the Board has set up a procedure for re-checking of papers and a committee has been constituted for the purpose to examine the following eventual ities :
(a) Whether grand total of the answer sheet is correct;
(b) Whether any question has been left un-marked; and
(c) Whether answer sheet or the additional sheets are original and have not been changed.
The record reveals that the application filed by the applicant was processed and the paper was re-checked in the presence of the candidate/ respondent but nothing was found wrong on rechecking. Except the above-reproduced eventualities, no other provision is available in the Calendar for re-evaluating, rechecking or re-marking of the paper. The learned High Court has not differed with this legal aspect of the case while observing that it is true that the Calendar does not permit the authority to re-mark or re-evaluate an answer-sheet, however, besides that the learned High Court has issued the supra direction. It appears that the learned High Court was influenced by the marks-sheet of the respondent, which shows that he secured more than 90% marks in the other subjects and mainly focused on the career of the respondent on the strength of the percentage secured by him in the other papers. It may be observed here that no such direction in deviation of the statutory provisions of law can be issued on sympathetic ground, which may affect the rights of the other students, as the right of equality before law is available to every citizen of the state and nobody can be discriminated. A The same Examiner has checked the paper of the other students and no objection has been brought on the record by any other student regarding his marking, therefore, the respondent cannot be singled out while giving the relief, which cannot be extended beyond the rules and regulations. Perhaps, due to the lack of assistance, the learned High Court, while delivering the impugned judgment, has not taken into account the law laid down by the apex Court of Pakistan, in the case reported as Tahir Saeed Qureshi v. Board of Intermediate and Secondary Education Sargodha and 3 others [1996 SCM R 1872], which arose out of the similar facts and circumstances as are involved in the case in hand and the case of the respondent cannot be distinguished from the case referred to hereinabove. The relevant findings are reproduced as under:- "4. The papers were re-checked and no mistake was found in the papers of the petitioner with regard to the marks obtained by the petitioner in term of the Rule reproduced above. The prayer made by the petitioner as referred to above does not fall within the "four corners of provision of law reproduced above. The learned High Court was, therefore, right and justified in refusing to interfere in the matter of education institution in exercise of its Constitutional jurisdiction beyond the scope of Rule XV of Chapter 5 of the Rules. Leave to appeal is, therefore, refused and petition is dismissed."
The correct case-law has been referred to by the counsel for the appellant, whereas the case-law referred to by the counsel for the respondent is not helpful to his case.
On the basis of what has been discussed above, we are convinced that the learned High Court, while issuing the direction in the impugned judgment, has travelled beyond the statutory provisions of law and the law enunciated by the superior Courts. Resultantly, the appeal is accepted and the judgment passed by the High Court on 26.2.2018 is set aside, with no order as to costs.