AMIR ALAM KHAN, J.- The petitioner through the present Constitutional petition seeks direction in the nature of mandamus that the respondent-Board and its relevant officials be directed to get the petitioner's answer to question No.1 of Physics paper re-evaluated and thereafter the result of the petitioner be declared in accordance with re-evaluation done by the Board.
2. The facts constituting background of this petition are that the petitioner being a regular student of Government College for Women, Sialkot, appeared in F.Sc. (pre-medical) examination Part-1 held in the year 1997 as organized by respondent No.1. She was allocated Roll No.20343 while her registration number was 130-SGW-96. As per the result declared by the Gujranwala Board, she obtained 429 out of 550 marks, the split up of which is given hereunder:- Urdu 79/100 79% English 74/100 74% Islamist 35/50 70% Physics 67/100 67% Chemistry 92/100 92% Biology 82/100 82% {{TABLE}}} The petitioner being dissatisfied with her marks in Physics, applied on 14.10.1997 for re-checking of the said paper. It appears that the Board having found some omission on the part of the examiner in marking the paper sent the same to the examiner at Bahawalpur but having received the same without any addition or alteration in the marks intimated the petitioner about the same. The petitioner on the other hand contended that she had attempted question No.1 (Objective) and out of 19 objective parts, the petitioner had attempted 17 parts, while the front-sheet of the answer book shown to the petitioner by respondent No.3 reflected the award of zero marks against question No.1. It was submitted that the question being compulsory had been attempted by the petitioner as pointed out to the respondents but she has been communicated the decision of the Board as afore-referred which is apart from being evasive is fanciful and arbitrary and tend to reflect on the academic career of the petitioner as she is to seek admission in the medical college on the successful completion of intermediate examination, hence the prayer that the respondents be directed to re-evaluate question No. 1 of paper of Physics and announce the result thereafter.
3. Report and parawise comments were called for and have since been filed wherein the stand point of the Board is to the effect that there is no provision for re-evaluation in the calendar of Board of Intermediate and Secondary Education, Gujranwala, therefore, no direction could be issued in that regard and that in any case the Head Examiner and Sub-Examiner are necessary parties which have not been so impleaded, therefore, the controversy cannot be resolved in their absence. It was submitted that the petitioner had an alternative remedy to approach the Chairman, Board of Intermediate and Secondary Education, Gujranwala, hence the petition is incompetent. Rule 11 of Chapter 5 of the Calendar of Board of Intermediate and Secondary Education, Gujranwala, was relied to contend that pursuant to the observation of the rechecking committee, the answer book of the petitioner was sent to the Sub-Examiner who in turn reported that paper of the petitioner has been marked correctly and that in his opinion the answer to question No. 1 had been attempted after the paper had been marked, therefore, it seems to be a case of unfair means. The said report of the Sub-Examiner had also been endorsed by the Head Examiner. All in all, the total pleas raised in the petition were denied.
4. I had also summoned the original paper of the petitioner which was ordered to be examined by an Examiner at Lahore. The said paper was sent to Dr. Muhammad Rafique, Associate Professor of Physics, Government College, Lahore, under the orders of the Chairman, Board of Intermediate and Secondary Education, Lahore and has since been returned with the report that the petitioner's 10 out of 19 parts were found to be correct. A photostat copy of the said report alongwith original paper as also the copy of the report of hand-writing expert had been secured with the Deputy Registrar (Judl.) of this Court which has been opened at the time of rehearing of the case. It would be relevant to state here that the original Sub-Examiner having opined that it appears to be a case of unfair means, the Board proceeded to obtain a report from hand-writing expert as to whether the answer to question No.1 had been attempted after the paper had been marked by the original Sub-Examiner, who had since reported on the basis of certain reasons that the answer has been attempted. After the marking of the original paper.
5. At the hearing, learned counsel for the petitioner reiterated the grounds as set forth in the petition and relied on the case of "Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and two others (PLD 1992 S.C. 263) wherein the case of "Chief Settlement Commissioner v. Raja Muhammad Fazil" (PLD 1975 S.C. 331) has been noticed and relied for the proposition that in the absence of statutory provisions, authority was left with the residual law that where every authority and every Tribunal and every Court has been authorised to undo fraud, perversity and a manifest abuse of its authority effecting its jurisdiction and if there was a criminal design or a fraud perpetuated on the candidate or a manifest case of victimization 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. Mr. Shafi-ur-Rehman, J. (as he then was) who spoke for the Court went on to conclude that: "The stages in which such a controversy has to be examined are that first the identity of the script or answer book is to be established by visual inspection of it by the candidate. He must on it. It must be his. Next, the perversity, the abuse, the criminality in evaluating it should be particularised by the 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 the Court and allowed to meet the allegations. If the Court finds ex facie that there is good ground made out for further inquiry in terms of Muhammad Fazil Khan's case noted supra, it should itself examine and in the next stage get the answer book examined after annulling the award of marks on grounds fully established."
It was submitted that the petitioner's answer to question No.1 had not been evaluated at all as would be evident by the report of the Sub-Examiner whereby he reported that the answer to question No.1 of paper of Physics had been attempted after the paper had been marked as also the report of the second examiner at Lahore, who reported that 10 out of 19 parts were found to be correct, therefore, the petitioner would be well within his right to invoke sub-clause (iv) of Chapter- 5 ot the Calendar of Board of Intermediate and Secondary Education, Gujranwala that his answer had remained unmarked by the Sub-Examiner. Alternatively it was submitted that the evaluation, if it is considered to be done by the Sub-Examiner, is not in accord with the answer meaning thereby that the award of zero marks is not correct by any yardstick because on rechecking 10 out of 19 parts of the answer to objective question No.1 of paper Physics have been found to be correct. He relied on resolution dated 31.8.1981 passed by the Board of Intermediate and Secondary Education, Lahore, in this behalf which incidently finds mention in the case of Salma Feroze supra. Learned counsel for the petitioner summed up his arguments with the plea that it. Was a case of improper marking or no marking at all which needs to be corrected by awarding proper marks.
6. Learned counsel for the Board on the other hand raised out repeated arguments that there being no provision or rule permitting re-evaluation of the paper, the petition itself was not maintainable and merits out right rejection. Reliance was placed on Board of Intermediate and Secondary Education, Lahore v. Saima Zahid (1996 SCM R 676), Tahir Saeed Qureshi v. The Board of Intermediate and Secondary Education, Sargodha and three others (1996 SCM R 1872), Munaza Khalil v'. Chairman, Board of Intermediate and Secondary Education, Faisalabad (1994 CLC 947), Fahad Latif Paracha v. Board of Intermediate and Secondary Education, Multan and another (1979 MLD 580). In all the judgments noted above, the rule of law laid down is to the effect that in the absence of any provision in that regard, re-evaluation of the paper cannot be done. The two Supreme Court judgments above-referred, though are later in time than the case of Mst. Salma Feroze noted supra but the rule laid down in the said case has not been noticed in the cases of Saima Zahid & Tahir Saeed Qureshi.
7. As would be seen that it is not a case of routine re-evaluation of . An answer book having been attempted by the examinee for the appreciation thereof would differ from examiner to examiner.
On the contrary, it is a case of marking the objective question which is in the nature of mathematical calculation. The answer could either be right or wrong, therefore, the marks are to be allocated or not to be allocated at all. There is no mid-way, hence the said question is to be treated apart. The case of the petitioner is that she had attempted 17 parts of the said question but was awarded zero marks, therefore, her paper should be checked. This request of the petitioner was accepted by the rechecking committee of the Board and the omission on the part of the examiner having been detected, the paper was sent to the same sub-examiner for correction (under-lining is mine). The said examiner having seen the omission in not marking the answer to objective question No.1 of the said paper refused to rectify the same on the ground that in his estimation, the question appears to have been attempted later on and recommended that it was a case of unfair means. It was too late ill the day to suggest even that it was a case of unfair means but it seems that the opinion was also entertained by the Board who in turn obtained report from the handwriting expert that answer to the question was attempted at a later point of time. The omission on the part of the examiner was also got rechecked by sending the paper to the second examiner at Lahore who having rechecked the answer of the question had reported that 10 out of the attempted parts are correct. The question is as to whether this effort should be treated as re- evaluation or rechecking. Then again the Mestio would be should one shut his eyes from the reality and not allow the marks to the examinee simply for the reason that there does not exist any provision. The rule of equity is manifestly attracted in the circumstances and the power of judicial review is there to correct not only the mistake but also the perversity which is floating on the record as also undoing the wrong meted out to the petitioner. ,The only question would be as to whether the requisite procedure has been adopted and factual foundation has been established as per the rule laid down in the case of Mst. Salma Afroze. The facts noted above would show that the said examiner had the opportunity or at least provided one to explain his position vis-a-vis the question remaining unmarked who in turn failed to give any reason for not marking the question except the one that the answer had been attempted at a later point of time, therefore, the objection as to requisite procedure and the establishment of factual foundation has been squarely met. Need it be added here that the sub-examiner had no authority under the law to even cast doubts that the answer to the objective question had been attempted at a later point of time, resultantly the answer to the objective question No.1 of paper physics could not be awarded zero marks.
8. The reliance of the learned counsel for the respondent on the plethora of law noted supra is misplaced in the case of Saima Zahid. It was observed:- " It was not proper for the High Court directing examiners of specified papers to appear in Court on the fixed date of hearing alongwith answer books of all other examiners marked by them.................................................... Because marking of numbers on answer books being technical job performed by experts. High Court was not expected to take the same in the exercise of judicial review under Article 199 of the Constitution of Islamic Republic of Pakistan for the jurisdiction of the High Court under Article 199 of the Constitution was principal meant for correcting jurisdictional errors in the orders of proceedings of the Tribunal and executive authorities".
The rule of law laid down in this case was in relation to a situation where the whole lot of papers, as examined by different examiners, had been summoned by the High Court. The question involved, therein was-of re-evaluation of routine answer book and not that of checking of answer to an objective question. Again, the total lot of papers were summoned which was disapproved. In the case of Tahir Saeed Qureshi, the papers of the examinee were rechecked and re-evaluated who wanted the same to be further rechecked and re-evaluated by a panel of examiners which was refused on the ground that rechecking having been once done, the procedure could not be undertaken all over again for if such an effort is allowed to. Continue, the process might never come to an end. In the instant case, neither the sub-examiner nor the head-examiner had denied that 10 out of 17 answers of the objective questions have been found to be correct, therefore, the rule laid down in this judgment also would not be applicable in the facts and circumstances of the present case. In the other cases i.e. Munaza Khalil and Fahad Latif, the question involved was that of re- evaluation of the routine papers and not that of rechecking of answer to objective questions to see as to whether the same has been properly marked or not. As already observed, the answer to the objective question is to be treated apart and it has been so treated by the rechecking committee of the Board itself.
9. Rule 11 of Chapter 5 of the Calendar of Board of Intermediate and Secondary Education, Gujranwala, is further relied. It reads as follows:-
(i) The Chairman or any officer authorised by him may on receipt of an application on the prescribed form within 30 days of the declaration of the result and accompanied by a fee of Rs.100/- per paper, satisfy himself that:-
(ii) there is no mistake of the grand total on the title cover of the answer book;
(iii) the total of various parts of a question has been correctly made at the end of question;
(iv) all total have been correctly brought forward on the .Title page of the answer book;
(v) no portion of any answer book has been let unmarked;
(vi) the answer book or any part thereof has not been replaced;
(vii) the candidate or any body in his/her behalf has no right to see or examine the answerbooks for any purpose.
Note: Last date for receipt of application Within 30 days from the date of form in the office of the declaration of the result. Controller of Examination Application received after the prescribed time limit shall not be entertained under any circumstances.
Sub-clause (iv) of the abovesaid rule would show that if a portion of any answer book had been left unmarked then in that eventuality, the evaluation of that portion shall be done which would be in the nature of re-checking although not re- evaluation. It is conceded at the bar that as per rule noted, above, it is the duty of the Chairman or any officer authorised by him in this behalf to undertake such an effort on the receipt of the application by the examinee. Learned counsel for the petitioner on the other hand referred to a decision of the Board of Intermediate and Secondary Education, Lahore, which finds mentioned in the case of Chairman, Board of Intermediate and Secondary Education, Lahore and another v. Ali Mir (1984 SCM R 433). I am tempted to quote the same verbatim:- "There is no provision in this rale 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 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".
The fact remains that in the case of an answer to an objective question, if the answer is crossed altogether and the examinee had awarded zero mark, then in that case, will the Board be allowed to maintain that since no rule as to re-evaluation is available, therefore, the answer paper cannot be rechecked. In the instant case, answer to question No. 1 contains 10 correct parts which need to be marked and had not been so marked. The Court must not tum it's back on the examinee for these marks may make or mar her career, therefore, I would grant the mandamus that the petitioner's answer to objective question No.1 of paper Physics be rechecked and properly marked.
10. As for the making of case of unfair means against the petitioner is concerned, suffice it to say that this appears to be the result of omission on the part of the sub-examiner to award marks to the answer to the objective question No.1 of paper Physics who instead of admitting the omission and supplying the lapse tried to find reason therefor and thought it easy to level allegations against the examinee which is not parental behaviour.
11. In the circumstances, relying on the rule of law laid down in the case of Mst. Salma Feroze noted supra, I accept this petition and grant the mandamus as aforesaid, resultantly the Board is directed to act in accordance with the award given by Dr. Muhammad Rafique, Associate Professor of Physics, Government College, Lahore. There shall, however, be no order as to costs.
12. The original paper of the petitioner alongwith photo-stat copy of the report of handwriting expert as also the award given by Dr. Muhammad Rafique, Associate Professor of Physics; Government College, Lahore, in relation to first question (objective) of the answer book of Physics paper of the petitioner, shall immediately be sent back to the Board of Intermediate and Secondary Education, Gujranwala.