JAWAID NAWAZ KHAN GANDAPUR, J.---The brief facts of the case in hand are that the petitioner had appeared in 1995 (Annual) Secondary School Certificate Examination (General Group) held by the Board of Intermediate and Secondary Education, Peshawar under Roll No.102227. The result was announced on 27-7-1995 and the petitioner was declared to have passed the examination by securing 608/850 marks.
2. Since the petitioner was of the view that she had done her papers 'extremely well, therefore, she genuinely felt that her papers had not been judiciously marked and thus submitted an application to the Controller of Examination (respondent No.2) for re-totalling/rechecking of her marks in respect of the two papers i.e. General Mathematics and General Science. This application was submitted on 7-8-1995. The requisite fee, required to be deposited for the re-totalling/rechecking of the papers, was also deposited by her vide receipt No.16296, dated 7-8-1995.
3. On the very next day i.e. 8-8-1995 the papers were shown to the petitioner's Aunt Dr. Prof. Mehr Taj Roghani. When the papers were seen it transpired that the petitioner's paper of General Science carried double marking. In the initial marking (by the Sub-Examiner) she had been given more marks (77 marks) whereas in the marking done at the later stage (by the Head-Examiner) her marks were reduced by as many as 9 marks. In other words, 77 marks were reduced to 68 marks.
She immediately approached respondent No.2, once again, vide her application praying that she should be allotted the same marks which were initially/originally given to her. Unfortunately no action, whatsoever, was taken on the same. On the contrary the respondents refused to undo the wrong, therefore, the petitioner having no other option knocked at the doors of this Court for the redress of her grievance by filing the present writ petition.
4. On 30-10-1995, when the writ petition came up before this Court, pre--admission notice was issued to respondent No.2 with the direction to file his comments within 15 days. However the needful was not done. The matter was placed before the Court on 12-12-1995. As respondent No.2 had failed to furnish the requisite comments, in spite of clear directions, therefore, the writ petition was admitted to full hearing.
5. Mr. Muhammad Sardar Khan, Advocate, for the petitioner and Mr. Shahzad Akbar, Advocate, for respondent No. 2 present and heard. Record of the case perused.
6. At the very out set the learned counsel for the petitioner submitted that the rule/procedure laid down in Para.36 of Chapter XXVIII was not followed/complied with, in letter in spirit, because under the said para. No one was empowered to increase or decrease the marks assigned to any Answer Paper by a Sub-Examiner. He further submitted that in the case of a difference between the Sub- Examiner and the Head Examiner the matter had to be referred to the Chairman who could either appoint a third Examiner or refer the matter to the Committee of Courses (concerned) whose decision was subject to the final approval of the Chairman. The learned counsel further stated that in the petitioner's case her marks in the General Science were reduced unilaterally/arbitrarily in total disregard of the Rules. According to him; the act of reduction of marks, in the circumstances, was without lawful authority and therefore, void ab initio. The petitioner's counsel further stated that it was the right of the petitioner to be treated in accordance with law (Article 4 of the Constitution of Islamic Republic of Pakistan, 1973) and the respondents were bound to act in accordance with Rules and Regulation which govern their work. He, therefore, prayed that by accepting this writ petition an appropriate writ may be issued directing the respondents to allot 77 marks to the petitioner in General Science Paper instead of 68 marks and also to make the necessary corrections in their record in this respect.
7. On the other hand, Mr. Shahzad Akbar, counsel for respondent No.2 vehemently argued that under para.39, the work of the Sub-Examiner was to be supervised by the Head Examiner whereas under para.40 each Head Examiner, was required to revise 7-1/2 % of the answer books marked by a Sub-Examiner besides the usual test Instalments. He stated that respondent No.2 had, therefore, acted in accordance with the rules, as laid down in the Calendar of the Board of Intermediate and Secondary Education, Peshawar, and had rightly reduced the marks given to the petitioner.
According to him the reduction of marks by the Head Examiner was not in violation of the rules and as such it could not be said that he had acted without jurisdiction and therefore his action was illegal/void.
8. The relevant para. 36 of the section 4 on which reliance has been placed by the learned counsel for the petitioner for the sake of convenience is reproduced as under:--- "In no case shall the Head-Examiner himself increase or decrease the marks assigned to any Answer Paper by a Sub-Examiner---In case of a difference arising between a Head-Examiner and one of the Sub--ordinate Examiners, the Chairman may either appoint a third Examiner whose award shall be final or refer the matter to the Committee of Courses concerned for a decision which shall be subject to the final approval of the Chairman" .
9. A plain reading of the above would show that legally the Head---Examiner has not been authorised to either increase or decrease the marks assigned to any Answer Paper by a Sub- Examiner. It has been further provided that in case of any difference between the Head-Examiner and one of the Sub--ordinate Examiners, the case has to be referred to the Chairman who may either appoint a third Examiner, whose award shall be final, or refer the matter to the Committee of Courses for a decision which shall be subjected to the final approval of the Chairman.
10. As far as para. 40 of Section V is concerned, we are of the view, that the Head-Examiner has been authorised to revise 7-1/2% of the Answer Books, marked by a Sub-Examiner, besides the usual Test Instalments, and in case of difference with the Subordinate Examiner the case has to be dealt with in accordance with the Rules/Procedure as contained in para.36 mentioned above.
11. Since the respondents had not acted in accordance with the rule/procedure as laid down therefore their action is coram non judice and is accordingly set aside.
12. In view of what has been stated above we accept this writ petition and direct the respondents to allot 77 (original marks) to the petitioner in the General Science Paper and also to make necessary correction in their record in this regard. Fresh Detail Marks Certificate be issued to the petitioner.
13. No order as to costs.