The relevant facts are that Imtiaz Rasool petitioner appeared in the F.Sc. Pre-Medical Group Exams.
Of Spring, 1991 conducted by Board of Intermediate and Secondary Education, Faisalabad and obtained 119 marks out of 200 in English. He again appeared in the Annual Examination of 1992 and got 141 marks. To improve his position, he made another attempt and appeared in the Annual (Spring) Examination, 1993 and obtained 112 marks out of 200. It is stated that although he had improved his position in the other subjects but surprisely obtained less marks in the subjects of English than he had obtained in the earlier examination. The petitioner submitted various applications to the-Board for re-evaluation of his English Papers but with no result. According to the petitioner, he has reason to believe that either his answer-books have been changed or the marking was substandard. He adds that the instructions issued to the examiners for marking of papers were not complied with and their violation is a mala fide act.
Through this constitutional petition, the petitioner requests that his answer-books of English subject of the Spring Examination of 1993 be summoned for perusal and the Chairman Board of Intermediate and Secondary Education, Faisalabad be directed to get them re-evaluated
2. The respondents have contested the petition. Learned counsel for the respondents contends that there is no provision for re-evaluation of the answer-books nor is there any ex-facie disclosure of fraud and abuse of regulations in marking the papers. He maintains that roving inquiry in writ jurisdiction cannot be undertaken to make out a case of re-evaluation. Re--checking of the answer-books may, however, be done to see that:---
(i) Totals have been rightly brought forward;
(ii) No portion of any answer has been left unmarked;
(iii) There is no mistake in the grand total on the cover of the answer-- book; or/and
(iv) The answer-book has not been changed.
3. In order to satisfy myself that there was no lacuna of the kind mentioned above, I sent for the answer-books. In compliance with the order, Deputy Controller, Board of Intermediate and Secondary Education, Faisalabad has produced the answer-books before the Court. Their examination shows that totals have been rightly brought forward; no portion of any answer was left unmarked; there was no mistake in the grand total; and that the answer-book had not been changed.
4. Learned counsel for the petitioner mainly advanced arguments on the premises that the answer-books were not evaluated in accordance with the instructions issued by the Board.
5. The law on the subject of re-evaluation of answer-book was laid down by the Supreme Court in the case of Chairman, Board of Intermediate and Secondary Education, Lahore and another v. A.I Mir (PLD 1984 SCMR 433) in the following words:--- "There is no provision in this rule for re-evaluation 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- book 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 sub --Committee 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."
6. In Board of Intermediate and Secondary Education. Lahore through Chairman and another v. Mst.
Salma Afroz and 2 others (PLD 1992 SC 263), the Supreme Court observed that "In the case of ex- facie disclosure of criminality, irresponsibility, fraud, perversity and abuse of regulations for re--- evaluation of the answer-books may be done if the examiner-accused of having indulged in the illegalities fails to meet the allegations after being impleaded as party in the Court." In the present case, there is no disclosure of criminality, irresponsibility or fraud and abuse of regulations in marking the papers. The argument of the learned counsel for the petitioner that his client's answer --books were not evaluated in accordance with the instructions is devoid of any force. In A.I Mir v.
Province of Punjab etc. (PLD 1983 Lahore 262), the Division Bench of this Court observed as under:-- - "I only wish to 'say that this Court does not interfere in marking of answer-books by examiners of the educational institutions. It is their job and satisfaction as to what standard the students have attained".
The allegation of mala fide levelled by the petitioner against the Chairman and Controller of Examinations, Board of Intermediate and Secondary Education, Faisalabad is vague in general terms without there being any specification. It was held in Federation of Pakistan v. Saeed Ahmad Khan and others (PLD 1974 SC 151) that:--- "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case."
7. For the reasons discussed above, there is no substance in the petition and the same is dismissed accordingly. However, parties are left to bear their own costs.
8. Before parting, I would like to observe that prohibition in regulations of the Educational Boards on re-evaluation of answer-books is manifestly unjust and calls for an amendment not only in inspection of answer-books but for re-evaluation and verification, as well because even a fraction of percentage in marks can make or mar the career of a student, In this context, I make a reference to Avadhani Meena and others v. Board of Secondary Education (KLR 1982 Civil Cases 300), (foreign judgment), where it was observed that:--- "It is an accepted principle that there is no wrong without a remedy and no human institution can be infallible. Examiner is no exception. On account of various human factors such as pressure of work, mood lack of energy, absent-mindedness and many other lists of which is inexhaustible, honest mistake in valuation can take place even if the allegations of malpractices of various types are ignored."
Fair-play is the essence of every public obligation and absence of fairness in the matter of public duty is a civil wrong against those who are affected. Failure to perform public duty is actionable.
9. Every regulation has to stand the test of reasonableness. The administrative convenience in the way of re-evaluation sounds hallow. The right of re-evaluation can serve as a check on arbitrariness, casualness, negligent attitude or even malpractice on the part of the examiner. The Board can charge reasonable fee for re-evaluation which may be conducted by a Board of Subject Specialists. If the, orders, judgments or appreciation of evidence by the Courts and Tribunals including Full Bench of the High Court are open to scrutiny why should not the action of the examiners be open to verification. The Boards empowered to conduct examinations, are under an obligation to ensure correctness of evaluation process and elimination of the possibility of errors at any rate, flowing from negligence, casualness, indifference or possible acts of misconduct on the part of the examiners and others. This calls for an elaborate system against the possible lapses of the examiners as also the supervisory staff. The adoption in the system of examinations will surely increase the confidence of the examinees in the examinations and would serve as a check on the arbitrary and irresponsible manner of marking.