MUNIR A. SHEIKH, J.- In th:'. Constitutional petition the petitioner has. Prayed for a declaration that the act of respondent No. 2 for awarding him 44 marks in viva voce/practical of the Final Examination of B.Sc. Physiotherapy is mala fide and a direction has been sought against respondent No. I that the petitioner be re-examined by another Examiner and thereafter declared his result of the sai examination in the light of this re-examination.
2. The fact relevant for the disposal of this Constitutional petition shortly stated are that the petitioner is a student of B.Sc. Physiotherapy in the school of Physiotherapy, Mayo Hospital, Lahore and respondent No. 2 is the Principal of the said School under the administrative control of Health Department of Govemment of the Punjab. In the 1st Professional Examination the petitioner in all secured 70% marks in the average and stood second in the University, In the Final Professional Examination held in 1995 the petitioner secured about 66% marks in the average. In the subject of Physical Treatment he secured 57% marks out of I0O. In the viva voce/practical of the said paper he was, however, awarded 44 marks which was short by one mark to qualify the said examination, therefore, he was declared failed.
3. The petitioner has challenged the bona fides of the award of 44 marks in the viva voce, It has been stated in the petition which has been supported by an affidavit that respondent No. 2 had framed a student organization namely Physiotherapy Students Association and has been putting pressure upon the students' to join the said Association by obtaining its membership and to give subscriptions and other charges. Since the petitioner did not join the said Association, therefore, he became prejudice against him. He and another teacher were the examiners of viva voce, as such, he deliberately awarded him 44 marks so that he should fail as a whole.
4. On one of the dates during the hearing of the petition, respondent No.2 vehemently denied the allegations of having established any Organization in the name of Physiotherapy Students Association and having developed any grudge against the petitioner on that account. It was also disputed that obtaining 45 marks the petitioner could have succeeded in the examination, therefore, I directed learned counsel for respondent No. 1 to produce the relevant rules. It is an admitted fact that in order to pass the said viva voce examination initially the student is required to obtain 50% marks i.e. 50 marks out of I0O. The relevant rule is rule 3 which is reproduced below:- "The minimum number of marks required to pass this examination for each medical subject shall be 50 per cent theory and 50 per cent in the oral and practical examination separately.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx A candidate shall be declared to have passed if he (a) fails in one subject (theory or oral or practical and/or aggregate) by a margin of 5 marks (b) fails in more than one subject by a margin which can be made up by distribution of subject by a margin which can be made up by distribution of five marks over the subjects/papers in which he fails when he takes the examination either in all the subjects at one time, of having appeared and fails in a part of the examination, reappears in the subjects in which he had not passed provided further that he will be granted this concession only once in this examination.
It is clear from this that the petitioner if had been awarded 45 marks in viva voce he would have been declared successfully by virtue of this rule, therefore, the stand taken by respondent No. 2 that the petitioner did not fail by one mark is not correct.
5. It has not been denied that the petitioner obtained more than 70% marks in the 1st Professional Examination and stood Second in whole of the University, In the Final Professional Examination in the written paper he had obtained more than 66 marks in the aggregate and in the written paper of the subject of physical Treatment he obtained 57 marks out of I0O. In the practical of the same which was held under the supervision of respondent No. 2 i.e. The Principal, he was, however, awarded 44 marks and was thus treated to have been failed in whole of the Final Professional Examination just by missing one mark.
6. Learned counsel for the petitioner during arguments brought to my notice that a complaint was made against respondent No. 2 for his involvement in the establishment of Physiotherapy Students Association which was enquired into as a consequence of which Chairman Medical Board of Studies removed him (respondent No. 2) as internal Examiner and appointed Mr. Zahid Mahmood Bhatti, Physiotherapist as such. Ch. Ijaz Ahmad, Advocate, learned counsel for respondent No. 1 is not in a position to admit or deny the correctness of this assertion. Respondent No. 2 did not appear on the date of hearing of the final arguments.
7. It is clear from the result of the First Professional Examination in which the petitioner obtained more than 70% marks and stood second in whole of the University and in the Final Professional Examination in which he obtained 66 marks in the average that he is an intelligent and hard working student, In the viva voce/practical examination according to the present system of the examination the examiner has been vested with unguided and uncontrolled power as regards award of marks for no criteria in writing has been laid down nor the said examiners are bound to maintain any record and disclose reason for awarding the marks to the student. This has engaged my serious consideration, for, a student failing in the practical examination is to be treated to have failed in whole of the examination. There is thus an inherent defect in the system of examination as the students have been left at the mercy of the examiners who may act according to their whims and arbitrariness.
8. There can be cavil with the argument of learned counsel for the respondent that this Court cannot itself substitute the marks awarded to the students by the examiners declare a student passed but the fact remains that in case the Court is satisfied that the marks awarded to the students in viva voce/practical examination prima fade on the face of the record appears to suffer from lacks of bona fides and not in consonance with the position which the student had obtained in the written papers and that the same suffered from arbitrariness the Court can certainly intervene to do justice and order re-evaluation as permissible^under the University Calendar of the marks awarded to the student in viva voce examination in the same manner as it can be done in relation to the marks awarded in the written papers.
9. In this case as I have already observed serious allegations have been made against respondent No. 2 who was Principal and one of the examiners in viva voce and the fact that after the inquiry he was removed by the Chairman Medical Board of Studies as Internal Examiner and that the marks awarded to the petitioner in viva voce examination are not in consonance with the position which he had obtained in the First Professional Examination and the marks in written papers of both the examiners. He has made to fail by only one marks. In my view these circumstances furnish strong evidence to hold that on the face of the record there appears to be mistake in the judgment of the examiners as regards award of marks in viva voce examination, therefore, the award of marks in the said examination should be reevaluated by holding viva voce examination afresh by a set of examiners other than those who had already examined the petitioner.
10. For the foregoing reasons the writ petition is accepted. The award of marks to the petitioner in viva voce examination and declaration of his result in pursuance thereof are hereby declared to be without lawful authority and of no legal' effect. The respondents are hereby directed to hold viva voce examination of the petitioner afresh by a set of examiners other than those who already held the said examination and thereafter declare the Jesuit of the petitioner in accordance therewith.
This shall be done within one month. There will be no order as to costs.