SHAFIUR RAHMAN, J.---Two of three petitions, arise cut of interim orders passed by the Lahore High Court, which have the effect of completely disposing of the matter in controversy. The third (C.P_976-L/91) has come up against the final order but in fact it is fructification of an interim order.
2.In C.P.LA.976-L/1991, Miss Sahna Afroze appeared in Intermediate Examination (Annual 1990-91) under Roll No.2614 (Pre-Medical Group) conducted by the petitioners. She got 756 marks out of 1100, details as hereunder:- "Subject Marks obtained Total Urdu A & B 123 200 English A & B 119 200 Islamic Education 38 50 Pakistan Studies 41 50 Physics 137 200 Chemistry 154 200 Biology 144 200 Total: 756 1100"
3.She was not satisfied with it and applied for rechecking of the scripts and deposited Rs.700 as required, in the following manner:- "(a)Rs.300 on 11-7-1991, for Paper-B Physics, Paper-A English, Paper-A Biology.
(b) Rs.400 on 15-7-1991 for Paper-B English, Paper-A Chemistry, Paper-A & B, Urdu,"
4.The result card after rechecking was revised as hereunden-- "Subject Paper Marks obtained Out of Urdu A & B 123 200 English A & B 121 200 Islamic Education 38 50 Pakistan Studies 41 50 Physics A & B 152 200 Chemistry A & B 156 200 Biology A & B 144 200 Total: 775 1100 5.She thereafter, expressed herself as hereunder:-- "That the petitioner is certain, confirmed in her opinion, without and shadow of doubt that if all the papers are properly re-examined and re-checked by the respondents, she will improve her position further enabling her meritorious performance in her academic career-" and invoked various grounds for seeking the following relief:- "It is, therefore, most respectfully prayed that the Result (Annexure B) of the Answer Books of all the subjects may be got evaluated in accordance with the Instructions of the Head Examiner/Paper-Setters and in view of the provisions of the Board's Calendar as .Mentioned hereinabove."
6.On 16-10-1991, the High Court passed the following interim order in presence of the parties:- "Learned counsel for the petitioner heavily relies upon an interim order dated 9-12-1991 passed by this Court in Zeeshan Majeed v. Board of Intermediate and Secondary Education (W.P.No.6347 of 1991). The referred petition was admitted to full hearing and interim relief was allowed to the petitioner in that case. Learned counsel prays for similar relief as was allowed in the referred case.
Learned counsel for the respondent Board has raised the same objections which were raised by him in the referred case. It is evident that interim relief was allowed to the petitioner in the referred writ petition and as such the petitioner is also entitled to the same relief. In the circumstances, this petition too shall be admitted to full hearing. In the meantime, papers of the petitioner shall be re- evaluated by th Panel of Examiners. This shall be done within next ten days without fail. For further proceedings, the matter is adjourned to be fixed for hearing along with the connected case."
7.The Board filed a petition for leave to appeal and on its application this interim order was suspended on 2-12-1991 and the matter has come up for hearing on merits after notice to parties.
8.In C.P.L.A. No,5-L/1992, Ahmad Jawad Oureshi is the student who appeared in the Intermediate Examination (Annual 1991) under Roll No.3529 (Pre-Medical Group) and secured 760 marks out of 1100, the details of which are hereunder:- "S. No.Name of Subject Marks obtained Total marks
1. English Paper `A' 46 100
2. English Paper `B' 59 100
3. Urdu Paper `A' 65 100
4. Urdu Paper `B' 71 100
5. Islamic Education 41 50
6. Pakistan Studies 36 50
7. Chemistry Paper `A' 65 75
8. Chemistry Paper. `B' 34 75
9. Chemistry Practical 37 50
10. Biology Paper `A' 57 75
11. Biology Paper `B' 54 75
12. Biology Practical 41 50
13. Physics Paper `A' 61 75
14. Physics Paper `B' 49 75
15. .Physics Practical 44 50 Total: 760 1100 9.He was not satisfied with the marks. Deposited Rs.300 as fee for re examination of the scripts of English Papers `A' and `B' and Chemistry Paper `B'. Rechecking yielded no improvement. He thereupon invoked the constitutional jurisdiction of the High Court, attacked generally the system of marking and prayed as hereunder:- "It is, therefore, most respectfully prayed that the result (Annexure `A') of the answer books of all the subjects may be got evaluated in accordance with the Instructions of the Head Examiner/Paper- Setters and in view of the provisions of the Board's Calendar as mentioned above."
On a similar application seeking interim order, the High Court, after hearing the parties, passed the following operative order on 24-11-1991:-- "In the circumstances, the interim relief allowed to Zeeshan Majeed Awan in the above-referred case shall be extended to the petitioner Ahmad Jawad Qureshi as well. With this observation, this application stands disposed of."
10.A petition for leave to appeal was filed against this order and the order was suspended by this Court on 14-1-1992.
11.In C.P.LA. No.6-L/1992 Usman Nemat was the candidate who appeared in the Intermediate Examination (Annual 1991) under Roll No.2428 Pre-Medical Group and obtained 750 marks out of 1100, the details being as hereunder:-- "S. No.Name of subject Marks obtained Total marks
1. English Paper `A' 33 100
2. English Paper `B' 68 100
3. Urdu Paper `A' 75 100
4. Urdu Paper `B' 66 100
5. Islamic Education 44 50
6. Pakistan Studies 40 50
7. Chemistry Paper `A' 62 75
8. Chemistry Paper `B' 44 75
9. Chemistry Practical 33 50
10. Biology Paper `A' 44 75
11. Biology Paper `B' 50 75
12. Biology Practical 39 50
13. Physics Paper `A' 55 75
14. Physics Paper `B' 59 75
15. Physics Practical 38 50 Total: 750 1100
12. He applied only for rechecking of English Paper `A'. No mistake was found on rechecking but he suspected undervaluation of script. He invoked the constitutional jurisdiction of High Court seeking the following relief:- "It is, therefore, respectfully prayed that the result (Annexure `A') of the answer book of English Paper `A' may be got evaluated in accordance with the instructions of the respondents and in view of the provisions of the Board's Calendar as mentioned above."
On 15-9-1991, the High Court passed the following interim order in presence of the parties:- "In this view of the matter the interim relief already granted to Zeeshan Majeed Awan shall also be extended to Usman Nemat petitioner. C.M.No.l/1991 stands disposed of."
13.Pursuant to it revaluation was done, the marks of the respondent were increased by 21 and on its basis he got admission in Pharmacy Class of Punjab University. The Constitution petition in the High Court was disposed of in the following words on 27-11-1991:- "Learned counsel contends that the case of Usman Nemat, petitioner, was admitted on the authority of admission of the aforesaid petition. He says that the case in hand is certainly at par with the case of Zeeshan Majeed Awan, referred to above. Learned counsel contends that the admission form of the petitioner was entertained by the respondent-authority and he was accordingly granted admission in the, college. No one appears on behalf of the respondent-Board to contest this case, although service was effected upon it. In the circumstances, I am of the view that the case of the petitioner is at par with that of the above-referred petitioner. Since final relief was granted in the abovereferred case and as such, there is no justification not to give similar relief to the petitioner in the given circumstances. Even otherwise, none appeared to draw distinction in these two matters. In the circumstances, the writ petition is accepted as having been fructified by giving the petitioner same relief as was given to Zeeshan Majeed Awan in his case, referred to above."
14.When this petition for leave to appeal came up before this Court on 15-1-1992, no interim relief was granted.
15.Now all these three matters have come up for hearing after notice to all concerned. A preliminary objection has been raised that as an Intra-Court Appeal was competent, these petitions do not lie before the Supreme Court.
Under the Law Reforms Ordinance, 1972 (Ordinance No. XII of, 1972), there is no appeal competent against an interim order. It is by and large the interim orders which are the subject-matter of these petitions and they could be the subject-matter of appeals by leave of the Court under Article 185(3) of the Constitution wherein final order is not mentioned.
16.After. Hearing the learned counsel for the parties and going through the record what has surprised us most at the hearing is that the learned Judge in the High Court who handled the matter, referred to no statutory provision on the subject, nor he kept in view the law declared by this Court on the subject in the case of Chairman, Board of Intermediate and Secondary Education, Lahore and another v. Ali Mir 1984 SCM R 433. The law on the subject was laid down by this Court in the following words:-- "There is no provision in this rule for re-evaluating an answer book. It appears that the Chairman had on an earlier occasion taken some action in relation to marking by a sub-examiner of answer- books of Spring Examination 1976 involving loss of answer-books and marking in more than one handwriting, which action when placed before the Board had been approved and by a resolution it had desired that `some thinking must be done about rectifying such injustices in individual cases'.
The matter was accordingly referred to .a subcommittee and on the receipt of its report a resolution was passed on 31-8-1981 to the effect that where zero mark had been given by the examiner on a correct solution, the answer-book could be referred to a Review Committee and if that Committee came to the view that injustice had been done to the candidate, the matter would be placed by the Chairman before the Board for its decision. It is obvious that the respondent's case not being that he had been awarded zero mark against a correct solution in any question he could not invoke the resolution, dated 31-8-1981. No other rule was cited conferring any right on a candidate to compel the Board to refer his answer-book for re-evaluation."
Even, the facts of the case Zeeshan Majeed Awan v: Board of Intermediate and Secondary Education, through its Chairman and another Writ Petition No.6347 of 1991 which was made an example for grant of interim relief were not looked into with that attention and particularity which was necessarily required for establishing the identity or similarity in the matter of grant of relief in these cases.
17.It is conceded by the learned counsel for the parties that the Calendar of the Board of Intermediate and Secondary Education, Lahore 1986 - Revised Edition, contains no such provision for re-evaluation of the answer-books as was ordered by the High Court. In the absence of any statutory provision, we are left with the residual law laid down by this Court in the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 where every authority, every Tribunal and every Court has been authorised to undo fraud, perversity and a manifest abuse of its authority affecting its jurisdiction. If there was criminal design or a fraud perpetuated on the candidates or a manifest case of victimisation by the examiner, then this principle of undoing the wrong was available both to the Board as well as to the Court provided the requisite procedure was adopted and the factual foundation was well established. In the case of Zeeshan Majeed Awan (Writ Petition No.6347 of 1991), which was adopted as an example by the learned Judge, the criminality and the perversity of the Examiners in respect of each paper examined and marked was given in great detail, and if correct on facts, it was sufficient to put the onus on the examiner to explain his unjustified marking. For example, Zeeshan Majeed Awan, in his writ petition, had stated as hereunder:-- "(i) URDU PAPER `A' Marks Awarded 60/100.
The very first question (Question No.5) is crossed by the Examiner and he awarded "ZERO" mark.
The question is correctly attempted and is of a very high standard. This is a clear case of wilful victimisation and injustice.
That according to Instructions of the Head Examiner/Paper-Setter, that more credit should be given who uses literary language and writes in a stylish way.
Furthermore throughout the Paper, the Examiner has under-evaluated and deducted marks from each and every question attempted. The other instructions have also been ignored.
The copy of the qustion Urdu Paper `A' is Annexure B'.
The copy of the Instructions is Annexure B-1.
(ii) URDU PAPER `B' Marks Awarded 69/100.
In question No.5(b) all the idioms have been correctly explained but full credit has been refused.
The Examiner has given few marks instead of full credit as given below in violation of the Instructions of the Head Examiner/Paper-, Setter, which is as under:-- 9/15 marks in Question No.4.
10/15 marks in Question No.3.
16/30 marks in Question No.l.
The copy of Question Urdu Paper `B' is Anne-xure `C'.
The copy of the Instructions is Annexure `C-1'
(iii)ENGLISH `A' Marks Awarded 52/100 All the questions have been attempted in idiomatic and correct English according to the prescribed books, but the Examiner awarded the following marks in an unjust manner ignoring the style in writing and the matter content.
9/15 marks in Question No.l.
8/15 marks in Question No.2.
8/15 marks in Question No.3.
9/15 marks in Question No.4.
9/20 marks in Question No.5.
9/20 marks in Question No.6.
The Examiner ignored the Instructions of the Head Examiner/PaperSetter regarding the proficiency of the language, ability to grasp the text and critical approach while answering the questions by the petitioner.
The Examiner underlined the correct words, depicting mistake unjustly.
The copy of the English Paper `A' is Annexure `D'.
The copy of the Instructions is Annexure `D-1'.
(iv)ENGLISH PAPER `B'. Marks Awarded 60/100 (a)Question No, A(b) hat been attempted correctly- Sentences have been constructed in an impressive and stylish English for the "PAIR OF WORDS". According to the Instructions, the petitioner should have been awarded 10/10 marks, whereas he has been awarded 2/10 marks.
(b)In question 4(a) which is also objective type and the petitioner has done no mistake at all, the Examiner has deducted one mark without justification and in violation of the Instructions.
(c)Similarly the Examiner has under-evaluated other questions and has awarded marks as under:--- 8/15 marks in Question No.l.
6/10 marks in Question No.2.
5/10 marks in Question No-3.
7/15 marks in Question No.5(b).
8/15 marks in Question No.6.
The Examiner violated the Instructions of the Head Examiner/Paper Setter maliciously.
The copy of English Paper 'B' is Annexurc .'E'.
The copy of the Instructions is Annexure `E-1'.
(v)ISLAMIC EDUCATION. Marks Awarded 40/50.
Question No.3 which is correctly attempted the petitioner has been given 10/12 marks instead of 12/12 marks in clear violation of the Instructions according to which full marks should have been granted. As regards the evaluation of other questions there too, the instructions have been violated.
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 arc 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 rinds 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.
In Muhammad Fazil Khan's case this Court has ruled that preponderance of judicial authority is in favour of conceding such a power (to suo motu recall or review an order obtained from it by fraud) to every authority, tribunal or Court on the general principle that fraud vitiates most solemn proceedings and no party should be allowed to take advantage of his fraud.
In case such a decision is given, annulling the earlier evaluation by the Examiner, the said Examiner should stand disqualified for ever from handling the answer-books/Papers of every examination conducted by the Board. It is necessary for the institutions which are dealing with the students and guarding the purity of examinations that the merit of the students should be protected and enhanced rather than thrown into jeopardy. The Board having not appealed in Zeeshan's case should take appropriate steps against the Examiners who indulged in such calculated perversity and criminality.
18. The learned counsel who represented the respondents in the High Court by not bringing to the notice of the High Court the law laid down .By this Court on the subject did not render good service to their clients. Besides, it has been laid down by this Court in Muhammad Sarwar v. The State PLD 1969 SC 278 that a Judge must know the adage that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter.
19. We convert these petitions into appeals, accept them, and set aside the impugned orders of the High Court. The result shall be that the re-evaluation done under the interim orders of the High Court shall stand revoked and if the respondents want to continue the writ petitions, they shall make fuller disclosure, implead the Examiners and raise appropriate pleas in the matter and the High Court shall deal with it on their own merits.
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