' MEHBOOB ALI KHAN, J.---Mian Mohsin Shah etc. The petitioners herein, who were final year M.B.,B.S. Students of the session 1992-93 at Khyber Medical College, Peshawar appeared in the Annual Examination Opthalmology paper held on 29-6-1993 but failed. In their view the paper was not only unconventional but the questions were much above the standard of under-graduates. Some questions (Nos.1, 3 and 6) were never set in Opthalmology paper for the last ten years in K.M.C., while one question (No,2) was asked once in ten years time in the Annual Examination held in the year, 1988 and two questions (Nos.4 and 5) were problematic, odds and difficult.
2. A protest was lodged by the students in the very examination hall against the setting of Opthalmology paper whereupon respondent No,4 who is Head of the Department of Opthalmology allegedly made a promise that while marking the Answer-papers he would take notice of the troublesome questions included in the paper. The petitioners who had passed in the same examination all other papers had mostly secured first division including the viva in Opthalmology Subject. They submitted a representation to the Vice-Chancellor through the Principal, K.M.C., Peshawar (respondent No,3) for the re-checking and comparison of their papers with those of respondents Nos.6 to 17 who had also taken that very examination in Opthalmology paper along with Dr. Muhammad Taqi etc. The Principal had although agreed that the paper was difficult and above the standard of M.B.,B.S. But the representation could not be granted due to Codal formalities which provided that only those candidates were eligible to apply for re-checking of their Answer-Books who fail in the subject by not more than five marks. The petitioners being aggrieved have moved this Court in two Writ Petitions (Nos.665 and 718 of 1993 as amended thereafter) filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 and prayed that this Court may declare the impugned acts done, proceedings taken and orders passed as without lawful authority and of no legal effect.
3. This may be mentioned here that in the meantime the petitioners under protest appeared in the supplementary examination of Ophthalmology Paper held on the 14th of December, 1993 and cleared it. An interim order was passed by this Court on 21-11-1993 whereby contesting respondents Nos.1, 2 and 4 were directed to produce in Court Answer-sheets of the Ophthalmology' Paper of M/s. Muhammad Hayat Durrani etc., i,e,, the pro forma respondents relating to the aforesaid final year M.B.,B.S. Examination before the writ petition could be admitted for hearing. But this order was later on set aside by the Supreme Court on 1-2-1994 in Civil Petitions Nos.592 and 593 of 1993 of the contesting respondents which were converted into appeals. The case was sent back for hearing and disposal by this Court without production of the aforesaid Answer-sheets.
4. The main grounds on which these writ petitions have been based are:
(a) That the petitioners have not been treated in accordance with law as laid down in the University of Peshawar Act, 1974, the rules contained in the Calendar of the University of the Peshawar (1991-92) and the law enunciated by the Supreme Court in the reported case in PLD 1992 SC 263.
(b) That the impugned Ophthalmology Paper could not be set and marked by respondents Nos.4 and 5 being not "external examiners" within the meaning of Rule 2, explanation (iii) (a) and (c) read with rule 19 of the University Calendar and as such was in violation of the rules, without lawful authority and of no legal effect.
(c) That the respondents Nos.4 and 5 have purposely failed the petitioners in the impugned paper by more than five marks in order to bring their case within the mischief of Rule 23 of the Calendar so that it may be out of the purview of re-checking.
(d) That the said rule 23 of the Calendar is ultra vires of the law under which it was made and the same being unreasonable and discriminatory is liable to be set aside; and
(e) That the impugned paper was totally unexpected, unconventional and above the standard of under-graduate students.
5. We have called for the parawise comments on the writ petitions by the respondents Nos.1 to 4 who have, inter alia, in these comments assailed the locus standi of the petitioners in the institution of like petitions which in their view have been conceived in bad faith and filed for ulterior purpose, i,e, to gain undue advantage through the aid of the Court. They while placing reliance on Rules 21, 22, 23, 24 and 25 in the Calendar of the University of Peshawar (1991-92) which relate to the re- checking of Answer-books under conventional system of examination disputed the eligibility of the petitioners by saying, that they had no case to apply for re-checking of their Answer-books by having failed in the Ophthalmology subject by more than five marks. They also decided that the impugned question paper was either unconventional or the questions set-forth were much above the standard of under-graduates and pleaded that not a single question asked in the said paper was out of course and that at many times these questions have been set-forth in the examinations held at K.M.C., Peshawar and Ayub Medical College, Abbottabad. It was further stated that the law laid down in PLD 1992 SC at page 263 by the Supreme Court in the case of Board of Intermediate and Secondary Education, Lahore v. Mst. Salma Afroza and 2 others rather goes against the cause of the petitioners.
6. We have heard Mr. Jehanzeb Rahim, Bar-at-law, on behalf of the petitioners-students and Mr. M.
Sardar Khan, Advocate for the contesting respondents. Mr. Jehanzeb Rahim while proceeding with his arguments on the writ petitions mostly made the following contentions:
(i) That Ophthalmology Paper in dispute was not set and marked by the Examiners in accordance with the rules contained in the Calendar of University of Peshawar (1991-92) at pages 488 to 491.
(ii) That questions Nos.1, 3 and 6 asked in the Ophthalmology Paper for the Annual Examination of the year, 1993 were problematic, odds and unconventional.
(iii) That Rule No,23 of the Calendar being totally unreasonable and inconsistent with Rule 25 may be struck down.
7. The matters relating to the appointment, duties and remuneration of Examiners and scrutineers have been mentioned at pages 488 to 491 of the University Calendar (1991-92). Rule 1 in this Chapter relates to the appointments of Examiners by the Vice-Chancellor whereas an explanation has been added to Rule 2 which provides for the description of the Examiners and clause (iii) states that the Examiners are either:---
(a) External.
(b) Neutral, or
(c) internal, which have been defined as such:
(a) An external examiner is one who is not teaching in an affiliated/Constituent College or Post- Graduate Teaching Department of the University of Peshawar.
(b) A neutral examiner is one who is not teaching (and has not taught during the two years preceding the examination) candidates for the particular examination for which he is appointed.
He may or may not be on the staff of an Affiliated/Constituent College or Post-Graduate Teaching Department.
(c) An internal examiner is one who is teaching (or has taught during the two years preceding the examination) candidates for the particular examination for which he is appointed.
' Rule 19 (i) which has been specially drafted for Post-Graduate, M.B.,B.S., B.Sc. Hons. In Forestry, B.A./B.Sc. Hons. Parts II and III Examinations unequivocally states that all Question-papers shall be set by External-examiners and clause (iv) of this rule further directs that the Answer-papers shall be examined by the External-examiners who set the paper(s).
8. Respondents Nos.4 and 5 admittedly do not fall within the category of "external examiners" as they both teach Ophthalmology subject at K.M.C., Peshawar and A.M.C., Abbottabad. They can be as such conveniently termed as "internal examiners" within the meaning of Rule 2, clause (c) at page 488 of the Calendar of the University of (1991-92) and could not as such set or mark the disputed question-paper in Ophthalmology under rule 19 (at page 491) of the Calendar. But we find on record that this rule has never been strictly followed. Ever since, the year, 1974 the question- papers in these Medical Colleges in different subjects are set by the external/internal examiners under recommendations of the Pakistan Medical and Dental Council. Respondents Nos.4 and 5 both are examiners of the Medical Colleges affiliated to the other Universities of the country. But if we accept this argument in that case we may not create a situation and confuse the matter to an extent that the whole examination system so far adhered to under this practice may not collapse.
We may accede to the argument, that the rules aforesaid of the Calendar (1991-92) at pages 488 to 491 of the Calendar have not been strictly followed in the appointment of "external examiners" but in that recourse we may not be compelled to call in question the validity of all such examinations held so far in this mode by the University and embark upon the conduct of all those students who had appeared in these examinations and have failed or passed including the disputed one when particularly we find that they are not parties before us in the instant litigation.
We in this context of the matter would not feel ourselves obliged to follow the case-law laid down in PLD 1994 Lah. 3 cited at the Bar and ask the University that the petitioners, who have failed in Annual Examination in Opthalmology Paper but have subsequently passed the same subject in the supplementary examination, should be considered to have passed it in the first final examination, 1993 under the original roll number. This contention in the circumstances we shall refute.
9. The learned counsel further argued that questions Nos.1, 3 and 6 asked in Ophthalmology Paper in the Annual Examination, 1993 were problematic, odds and unconventional. That the paper was totally unexpected and above the standard of under-graduates. The disputed paper of M.B.,B.S., 1993 Annual Examination was set by two Examiners, i,e, respondents Nos.4 and 5. The theory paper consisted of six questions out of which three questions were set by one Examiner and the remaining three by the other and four out of six questions were to be attempted. All these questions as we find in the comments furnished by the contesting respondents on the writ petition have been previously put in examinations both at K.M.C., Peshawar and A.M.C., Abbottabad.
Admittedly the paper had been set from within the prescribed syllabus and not a single question was out of course. Opthalmology Examination is in two parts, i,e, theory and practical and each part carries 75 marks. A student has to secure 38 pass mark in each part separately to get through in Ophthalmology and if he or she obtains good marks in practical/viva voce but fails in theory he/she fails in whole subject. If questions Nos.1, 3 and 6 have not been set at K.M.C., Peshawar for some time, these have been admittedly set up in Ayub Medical College, Abbottabad. All the questions in the disputed paper including questions Nos.1, 3, 4, 5 and 6 are unambiguous and straightforward and in no way can be termed as problematic, odds and unconventional. These questions are included in the Syllabus of the University and fall within the prescribed course of the subject and have been asked earlier in Opthalmology Paper of the Khyber Medical College.
10. The next contention raised by the learned counsel was that Rule 23 of the Calendar (1991-92) is unreasonable, harsh and inconsistent with Rule 25. We reproduce below the relevant rules provided in the Calendar of the University of Peshawar (1991-92) which relate to re-checking of Answer Books under conventional (annual) system of examination: ' Rule 21.
' The candidate shall apply on the prescribed form for re-checking of his/her answer book within 21 days of the declaration of result giving full justification for re-checking.
' Rule 22.
' The candidate shall be required to pay a fee of Rs,160 per paper.
' Rule 23.
' Only those candidates shall be eligible to apply for re-checking who fail in the subject by not more than 5 marks.
' Rule 24.
' The re-checking will be done in the presence of Vice-Chancellor and Controller of Examinations by the Principal/Head of the Department concerned. The Principal/Head of the Department may co-opt if necessary a Faculty member, who is a teacher of the subject.
' Rule 25.
' The Principal/Head of the Department shall satisfy himself that:
(i) All questions have been marked.
(ii) The total of marks allotted to individual questions are correct.
(iii) The Answer book belongs to the candidate by comparing it with his/her handwriting in the admission form etc.
(iv) The marks allotted to the candidate are in conformity with the marking of the Examiner in other cases.
' Rule 26.
' In case answer to a question has been left unmarked or the marking of the script in the opinion of the Principal/Head of the Department is at variance with the general standard of marking of the examiner the script will be referred back to the examiner alongwith the comments of the Principal/Head of the Department for reconsideration whose decision shall be final and the result of the candidate may be revived in the light of the new awards with the approval of the Vice- Chancellor. While forwarding the scripts of candidates on whom the opinion of the Principal/Head of the Department is based would also be forwarded to the examiner for reference.
11. The petitioners have although immediately moved an application before the Vice-Chancellor of the University for comparative rechecking of their Answer-books with those of the respondents Nos.
6 to 17 but it could not be granted in view of the bar placed under Rule 23 ibid as only those candidates could be eligible to apply for rechecking who fail in the subject by not more than 5 marks in spite of the fact that Principal of the College agreed and forwarded the petition with the following recommendatory note:- "Forwarded for favourable consideration as requested. It is a fact as agreed by most colleagues that the paper in eye was very difficult as above the standerd Of M.B.,B.S. The fact was conveyed to the Examiners and in spite of that maximum number of the students have failed in Theory ',as against their much better performance in the practical. I, therefore, strongly support their request."
' The learned Advocate contended that Rule 23 is inconsistent with Rule 25 of the Calendar that Rule 25 would have no application in practice unless an Answer-sheet is rechecked and the answer-sheet cannot be rechecked if a student fails by more than 5 marks in a particular subject.
That Rule 23 has in fact destroyed the whole purpose of Rule 25. If a student fails in a subject by more than 5 marks he is unable to apply for rechecking of his paper under Rule 23 even if some questions in the Answer-book have been left unmarked or the total of marks allotted to an individual question is incorrect. If an answer marked in the answer-sheet has been inadvertantly not included in the grand total and it causes a student to fail by more than 5 marks the mischief in Rule 23 would deprive him of seeking remedy under Rule 25 for getting the marks re-totalled. This can also happen in a case where answer book which does not belong to a candidate has been marked and included in his Detailed Marks Sheet etc. Rule 23 would also come into play in case a candidate asks for the rechecking of his Answer-book in order to find out that the marks allotted to the candidate are in conformity with the marking of the same examiners in other cases if he/she fails in that subject by more than 5 marks. It is thus seen that Rule 23 is undermining the utility of Rule 25 which is an overwhelming rule and not only helps in deciding the acts of victimization but also those of negligence and omissions/on the part of the Examiners and provides further a student to see his Answer-book for his satisfaction 'and adjudge as to whether he has been dealt with fairly.
12. Mr. Jehanzeb Rahim, Bar-at-law, in support of his arguments placed reliances on a Supreme Court Judgment (1981 SCMR 1002) in the case of Government of Balochistan and others v. Riffat Parveen wherein the Supreme Court was pleased to strick down a bye-law made in the Prospectus on the plea of unreasonableness requiring 12 years stay in the Province of Balochistan for eligibility for admission in Bolan Medical College as discriminatory and ultra vires of the Constitution of Pakistan, 1973. The Supreme Court in this case laid down the principle that a bye-law can be struck down on the following grounds:--
(i) That it is not made, sanctioned and published in the manner prescribed by the statute, which authorises its making:
(ii) That it is repugnant to the law of the land;
(iii) That it is repugnant to the statute under which it is made;
(iv) That it is uncertain; and
(v) That it is unreasonable.
' Similarly in the case reported in PLD 1979 SC 1---35, the Supreme Court was pleased to declare unreasonable and struck down certain provisions from the Prospectus of two Medical Colleges. The learned counsel also mentioned of a case from this Court in the matter of Ali Muhammad and others v. Admission Committee, University of Engineering and Technology, Peshawar and another (PLD 1982 Pesh. 106) where a provision made in the Prospectus of the Engineering University relating to the admission of the students was struck down by the Court on the ground of unreasonableness. The learned Advocate in this background stated that Rule 23 of the Calendar may be struck down being not only unreasonable but also inconsistent with Rule 25. On the point of rechecking of Answer-books of the petitioners he placed reliance on the Supreme Court judgment passed in the case of Board of Intermediate and Secondary Education, Lahore and another v. Mst.
Salma Afroz and 2 others (PLD 1992 SC 263) wherein the Supreme Court has been pleased to hold that in the absence of a statutory provision the Authority would be left with the residual law as laid down in the case of Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) by the Supreme Court that:-- "Where every Authority, every Tribunal and every Court has been authorised to undo fraud, perversity and 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 examiners, 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 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."
' In the case of Salma Afroz the Supreme Court has been further pleased to observe that depriving a student of his right to see his paper would leave him handicapped in making out a case of criminality, perversity, fraud and victimisation against the examiners.
13. Mr. M.Sardar Khan, the learned Advocate stated for the contesting respondents that there is no ex facie disclosure' of perverse marking of papers of the examinees and abuse of regulations in making these papers and that the petitioners have failed to make out a good ground for further inquiry into the matter by annulling the awards of marks already obtained in Opthalmology Subject and cannot as such ask for re-evaluation of their Answer-books for the simple reason that they are not satisfied with the marking of their papers by the present respondents-examiners. The learned counsel in this view of the matter also placed reliance on the case of Mst. Salma Afroz etc. (PLD 1992 SC 263) and Muhammad Fazil.Khan's case (PLD 1975 SC 331). While stating on the re-checking of Answer-books under the conventional system of examination he pleaded, that unless a candidate goes through the codal formalities contained in Rules 21, 22 and 23 he cannot make himself eligible for re-checking of his Answer-book under Rules 24 and 25 of the Calendar of the University of Peshawar. Again speaking on the rationale behind Rule 23 which reads that, "only those candidates shall be eligible to apply for rechecking who fail in the subject by not more than 5 marks," the learned counsel stated that if any relaxation in this rule is made there would be in that case a complaint by almost every student on the evaluation and marking of his Answer-book by the Examiner in each subject opening a floodgate for such applications and it shall thus become almost impossible for the University Authorities to meet such a situation and embark upon the rechecking of a big volume of papers by adopting the procedure laid down in Rules 24 and 25 ibid. The learned Advocate contended that reasonable classification with regard to the operation of laws is not prohibited. He in support thereof placed reliance on the cases of Jibendra Kishore Achharyya Chowdhary and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan (PLD 1957 SC 9), Brig. (Rtd.) F.B. Ali and another v. The State (PLD 1975*SC 506) and Zikriya and others v. The Trustees of Port of Karachi (PLD 1968 Kar. 93) by stating, that the guarantee contained in Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 that, "all citizens are equal before law and are entitled to equal protection of law", would always mean that no person or class of persons shall be denied the same protection of law which is enjoyed by other persons or other classes of persons in like circumstances. He thereby stated that the University Authorities under the Statutes of University being competent to frame a byelaw like one in Rule 23 of the Calendar could make a classification, that only those candidates shall be eligible to apply for rechecking of their Answer-books who fail in the subject by not more than 5 marks.
14. The petitioners on this case besides many other pleas have also asked that their Answer-books may be compared with the Answer-books of the pro forma respondents students in order to ascertain as to whether the marks allotted to the petitioners in Opthalmology paper are in conformity with the marking of the Examiner in other cases. They have admittedly failed by more than 5 marks in the Opthalmology Subject and in the ordinary circumstances would not be able to make a like request in view of the bar provided under Rule 23 of the Calendar. They cannot even ask for this much of relief as to whether all questions on the disputed paper have been marked, the total of marks allotted to individual questions are correct and the Answer-books marked in their names really belong to the petitioners as required by Rule 25.
15. We fully understand the rationale beyond the framing of Rule 23 in the Calendar in the manner aforesaid but we are constrained to state that this Rule has although on one hand checked the flow of unwanted complaints it has on the other placed restrictions on a candidate who has a genuine grievance that all questions in his/her paper have not been marked, the total of marks allotted to individual questions are not correct or that the marks allotted to him/her are not in conformity with the marking of the same Examiner in other case if he fails in subject by more than 5 marks. Suppose all questions in a certain Answer-books have not been marked or the total of marks allotted to individual questions have been wrongly calculated inadvertantly and a student in a like situation has failed in the subject by more than 5 marks then how would he or she be able to get redress in view of the bar placed by Rule 23 and ask for the re-checking of his/her Answer- book. Similarly, if he or she has failed in a subject by more than 5 marks, he or she cannot ask for the reevaluation of his/her Answer-book with those of other candidates marked by the same Examiner. We thus find that Rule 23 is inconsistent with Rule 25 and Rule 25 in the Calendar cannot operate independently but for Rule 23 even in very genuine cases.
20. We would be, therefore, constrained to recommend that the University Authorities may suitably amend Rule 23 in a manner that grievances of the students relating to the re-checking of Answer- books in genuine cases are looked into but at the same time the amended Rule does not open a floodgate for non-serious complaints and we would further recommend that the proposed amendment may also provide a scope for the exercise of parental jurisdiction by the University Authorities and make them able to cater by themselves for the amicable settlement of such like disputes between the Teachers and students. At the moment we shall suspend the operation of Rule 23 ibid for this particular case and direct respondents Nos. 1 and 2 that the Opthalmology paper of the petitioners shall be referred to a Neutral Examiner for rechecking within the scope of Rules 24 and 25 of le Calendar (1991-92). The writ petition shall succeed to the extent of the relief aforesaid. There shall be no order as to costs.