1. The petitioner seeks a declaration to the effect that the impugned orders dated 24-8-1998 and 25- 6-1998 passed by respondents Nos. l to 3 were void ab initio, illegal and without lawful authority and a further direction to get the paper of petitioner remarked by some third examiner (Federal Taxes-II) in the alternative to issue a direction to respondents Nos. l to 3 to process the application of the petitioner in accordance with law.
2. The background of the case is that the petitioner appeared in the Diploma in Taxation Laws (D.T.L.) held in December, 1997 under Roll No.7. Paper of Federal Taxes-II was entrusted to respondent No.4 for marking and the petitioner was given 28 marks while in all other papers he secured more than 60 % marks. The petitioner moved the University Authorities to reconsider the matter on the ground that the marking was done by some junior or son of the Examiner and was injudicious and that the paper be sent for re-marking or re--evaluation to any third Examiner but the request was declined. The petitioner then went before the Vice-Chancellor but again the request was declined on 24-8-1998. The petitioner has taken the ground that his answer-book was changed, Regulation No.4 Chapter-XII and Regulation 12 of Chapter I of the University Calendar were violated, his application was turned down without applying mind, opinion of Board of Study and Academic Council was not obtained in violation of proper procedure, decision was made ignoring the University Calendar, respondent No. 4 an employee of Income Tax Department was never teacher in the subject of Customs, Central Excise and Sales Tax and was not qualified to be appointed as an Examiner as per Chapter I, Part B, Regulation 2 and even he did not mark the answer book himself.
3. The respondent University has taken the stand that Regulation 4, Chapter XII and Regulation 12 of Chapter I of the University Calendar were not applicable in the case and the Rules for Diploma in Taxation Laws (DTL) Examination had separately been notified vide Notification No.Gen./BOS-XI (II)Vol-11/1734, dated 20-6-1988 and that application for re-marking and re-evaluation was rejected being contrary to the University Regulations and that the Vice-Chancellor was competent to decide re-examination or otherwise of answer books and Board of Study and Academic Council was nothing to do in the case of petitioner and that the respondent No.4 was appointed by the Vice-Chancellor as Examiner of Paper-III "Federal Taxes-II" of D.T.L. 1997 Examination on the recommendation of the Board of Studies in Law and it is the Board of Studies in Law which proposed panel of Examiners and that it is not necessary that the Examiner must have taught the subject in which he has been appointed as Examiner and that even otherwise respondent No.4 was qualified to be appointed as Examiner in terms of Regulation 2 of Chapter I, Part B and that no right of the petitioner has been infringed in any manner.
4. I have given due consideration to the valuable arguments on both the sides and perused the record.
5. Admittedly, the answer-book has not been produced in the Court; admittedly the Examiner is not a teacher in the subject; admittedly the petitioner obtained 60 % marks in all other papers and admittedly he has levelled open charges of mala fide and malice on the part of the Examiner and admittedly the request to re-evaluate the paper by any third Examiner has also been declined.
2. Admittedly the allegation of mala fide on the part of the respondents is specific and supported by affidavit. The respondent No.4 could have rebutted the allegations by counter-affidavit but he neither filed parawise comments nor appeared nor rebutted the allegations by any counter- affidavit nor did respondents Nos. l to 3 filed any counter-affidavits.
6. On law it is relevant to reproduce the Rules, Regulations and Syllabus of Diploma Course in.
3. Taxation Laws as contained in the Notification No. Gen./BOS-XI(II)Vol-II/1734 dated 20-6-1988. That is reproduced word by word as under:----- "The Vice-Chancellor, in exercise of the powers vested in him by section 16(3) of the Bahauddin Zakariya University Act, 1975, and on behalf of the Academic Council and the Syndicate, has been pleased to grant ex post facto approval to the Rules, Regulations and Syllabus regarding Diploma Course in Taxation Laws.
4. The Rules, Regulations and Syllabus of Diploma Course in Taxation Laws, as approved are given at Annexure-' A' . .
5. (Sd.) S.M. Amin, Deputy Registrar (Acad.)
6. Endst. No.Gen/BOS-XI(ii) Vol-11/1735, dated 20-6-1988.
7. Copy for, information to :-------
(1) The Dean, Faculty of Commerce, Law and Business Administration, B.Z. University, Multan.
(2) Principal, University Gilani Law College, Multan.
(3) Chairman/Convener/Members of the Board of Studies in Law,
(4) The Controller of Examinations.
(5) Assistant Controller of Examinations.
(6) Assistant Controller (Secrecy). (5 copies)
(7) Deputy Controller (Examinations.)
(8) Assistant Controller (Confidential Printing)
(9) Assistant Treasurer (B&S)
(10) Secretary to the Vice-Chancellor.
(11) P.A. To the Registrar.
(12) Notification file.
8. (Sd.) S.M. Amin, Deputy Registrar (Acad.)
9. Bahauddin Zakariya University. Multan (Annexure "A")
10. Rules. Regulations and Syllabus Regarding Diploma Course in Taxation Laws.
11. Admission
(i) The candidates holding the degree of LL.B. From Bahauddin Zakariya University or from any other recognised University will be eligible for admission in the abovementioned diploma class.
(ii) The candidates shall be admitted to the said class on the basis of the marks merit of the Law Graduates of any year.
12. (i.e) One hundred students will be admitted in the diploma class minimum number of students admitted will be forty.
(iv) Female candidates are also eligible for admission.
(v) No candidate shall, be allowed to take admission in Labour Law and Taxation Law courses simultaneously.
13. (vi)Three lectures will be delivered in a day for three days in a week for diploma class.
(vii) Three lectures will be delivered per paper per week.
(viii) The duration of a period will be forty-five minutes.
(ix) Six lectures shall be delivered on fundamentals of Accountancy to the students of Diploma Course in Taxation Laws..
(x) The students of each diploma course shall have to attend four above-- mentioned lectures in order to appear in the Diploma Examination.
14. Classes The classes will be held in the evening.
15. Fee and funds.
16. (i)Lump sum fee including the funds for a Diploma Course shall be Rs.460 in addition to examination fee of Rs.200 Detail of fee and funds is given below.
(a) Admission feeRs.20
(b) Tuition feeRs.300 (for 12 months @ Rs.25 P.M.)
(c) Special University feeRs.5 (This amount will be credited to the University account).
(d) Library FundRs.60 (for 12 months @ Rs.5 p.m.)
(e) Identity Card FundRs.5
(f) Establishment FundRs.70 (This amount will be utilized for advertisement, printing, stationery, payment of remuneration the part-time Clerk, part-time Bursar and part-time Naib-Qasid, appointed by the Principal and other miscellaneous charges).
(ii) Rs.50 will be charged from the unregistered students of Bahauddin Zakariya University as Registration fee.
17. (This amount will be credited to the University account).
18. (i.e) Examination feeRs.200 (this amount will be credited to the University account).
(iv) Late admission fee forRs.30 for delay up to 15 days. submission of examination Double fee within seven days before forms. The commencement of examination.,
(v) The payment of the fee will be made in lump sum or in instalments as allowed by the principal, in most deserving cases.
19. Status of the students.
(i) The students of Diploma course shall not be the member of the Students Union of the College.
(ii) They will not pay Union Fund.
20. (i.e) They will not take part in the activities of the Students Union of the College.
(iv) They cannot claim hostel accommodation as a right.
(v) They will enjoy the travelling facility by obtaining the Bus Card, College Identity Card, and Railway Concession Form.
21. Examination
(i) The following shall be the papers of the examination: PAPER-I HISTORY AND PRINCIPLES OF TAXATION Marks 100
1. Principles of Taxation. (This would include terminology relevant maxim etc.).
2. Rules of interpretation of fiscal statutes.
3. Brief history of Taxation Laws in Pakistan.
4. Outline of present taxation structure of Pakistan. (This would cover the following topics):
(i) Legal Foundation Constitutional provisions.
(ii) Federal Taxes.
22. (i.e) Provincial Taxes
(iv) Local Taxes.
(v) Central Board of Revenue.
(vi) The working of Tax Laws. (This would cover the following topics):
(i) The. Annual finance Ordinances Federal and Provincial Taxation proposals of Local Bodies.
(ii) Statutory Rules and Orders (SROS) detailed knowledge not required).
23. (i.e) General Orders, Circulars, Departmental Instructions.
(iv) Reports, Taxation, Pakistan Tax Decisions etc,.
24. 6.New Directions' (This would cover discussion of proposals/statutes dealing with Islamisation e.g. Zakat, Ushr etc.).
25. Paper-IIFederal Taxes-I Marks 100 1.The Income Tax Ordinance, 1919.
26. 2The Wealth Tax Act, 1963 3The Gift Tax Act, 1963.
27. Paper-III Federal Taxes-II Marks 100 1.The Customs Act, 1969.
28. 2The Central Excises and Salt Act, 1944 3The Sales Tax Act, 1951 (ii)Each paper shall carry 100 marks. The candidate shall be required to obtain 45 marks in each paper and 45 % of total marks of all the papers in order to pass the Diploma examination. No exemption of paper shall be allowed in case the candidates fail in one or two papers.
29. (i.e)Bare Acts in Papers II and III will be provided in the Examination Hall.
30. (iv)The Examiner in each subject shall frame the question paper from the prescribed syllabus in English.
31. (v)Medium of Instruction in the class room shall be English.
32. (vi)English shall be.The medium of the Examination.
(vii) The duration of course shall be one academic year. '
(viii) The Academic Council may from time to time change the outlines of test, the Syllabi and the Courses of reading with the approval of the Syndicate on the recommendations of the Board of Studies in Law, such charges shall always be notified at least one academic year before the date of examination which they will take effect.
33. (ix)The rate of examination fee shall be Rs.200.
34. (x).The examination shall be opened to any person who has passed--- (a)LL. B. Examination, of Bahauddin Zakariya University or holds LL. B. Degree from any other recognized University or any degree recognized as equivalent to that degree, and (b)has been on rolls of University Law College, Multan during the academic year preceding the examination--- (i)whose name has been submitted to the Controller of Examinations and
(ii) produce the following certificates signed by the Principal, University Gilani Law College, Multan.
35. (a)of good character; (b)of having attended not less than (two-third) of the lectures delivered to his class during the academic year preceding the examination.
36. (xi)The Principal, University Gilani Law College, Multan may condone for valid reasons deficiency up to 10% of the lectures. Provided that the Syndicate or the determining authority shall, under Regulation 4 of Chapter-III of Part-III (Volume-I) of the Calendar has the power to exclude any candidate from the examination, if it is satisfied that such candidate is not fit a person to be admitted thereto.
(xii) A student who having attended the prescribed number of lectures, does not appear at the examination for sufficient cause or having appeared at the examination has failed, may be allowed to avail three more chances without attending a fresh course of lectures.
(xiii) Every candidate shall, in order to be deemed to have passed this examination, be required to obtain forty five per cent. Of the maximum number of marks allotted to the paper.
(xiv) Successful candidates who gain sixty per cent. Of the total number of marks or more in the aggregate shall be placed in the First Division. All other successful candidates shall be placed in the Second Division.
(xv) As soon as possible after termination of the examination the Controller of Examinations shall publish a list of successful candidates showing the marks obtained by them. '
(xvi) Each successful candidate shall be granted a Diploma in Taxation Laws, stating the Division obtained.
(xvii) Every candidate shall forward his application to the Controller of Examinations in such form as may, from time to time, be prescribed ordinarily at least thirty days before the Commencement of the Examination, accompanied by the prescribed fee. A candidate who fails to pass or to present himself for the examination shall not be entitled to cl4im a refund of the fee. However, the fee shall be refundable to the legal heirs of a candidate who dies before the commencement of the examination.
37. (xviii) Whenever the application or fee of the candidate is received after the last date prescribed above; he shall pay the ptescribed additional fee, provided that such application shall only be entertained up to 15 days before the commencement of the 'examination. The candidates may be admitted to the examination on payment of double the ordinary admission fee after the last date for receipt of admission form and fee with late fee is over, provided that such application shall only be entertained if these are received at least 7 days before the date of commencement of examination.
38. The same concession shall be given -to failed candidates who are allowed a margin of 10 days for submission of their admission forms and fee after the declaration-of their results.
(xix) The examination for Diploma in Taxation Laws shall be held annually at Multan on such date as may be fixed by the Syndicate.
(xx) Certificate of merit shall be awarded to the first three successful candidates."
7. Admittedly the said Notification does not contain the definition of the Examiner and if one does not revert for guidance to the University Calendar these special provisions contained in the Notification remain incomplete and ambiguous as to whether the Examiner is only to frame the question paper from the prescribed syllabus in English or he is also to mark those papers.
39. Therefore, the definitions given in Chapter-I containing the Regulations relating to appointments of paper setters and examiners are reproduced from the University Calendar as under:-- "Part A. Definitions (1)A paper setter is one who sets a paper for a certain subject of an examination conducted by the Punjab University.
40. (2)An External Examiner is one who is not teaching in a teaching Department of this University or in an affiliated college. Ordinarily he should be a teacher of the subject in another University.
41. (3)A Neutral Examiner is one who is not teaching (and has not taught within two years previous to the examination) candidates for the particular subject of examination for which he is appointed.
42. (4)An Internal Examiner is one who is teaching (or has taught within two years previous to the examination) candidates for the particular subject (or part thereof) of examination for which he is appointed.
43. (5)A Head Examiner is one who supervises the work of ,his sub-examiners to keep up a uniform standard of marking in addition to the marking of answer-books allotted to him. He shall also be required to mark a certain percentage of answer-books marked by the Sub-Examiners.
44. A Head Examiner shall have the power to moderate the award of a candidate up to 5 marks.
45. (6)An Examiner is one who marks the answer-books The word "Examiner" includes subordinate examiner.
46. (7)A Sub-Examiner is one who marks the answer-books allotted to him but his marking to the approval of the Head Examiner in the paper/subject in which he is appointed.
47. (8)A Co-Examiner is one who is appointed to set a question paper, mark the answer-books and/or conduct the practical examination conjointly with another Examiner. "
48. Part "B" deals with General Regulations and its Regulation 2 reads as under:-- "(2) So far as possible, a teacher, if otherwise equally qualified under the rules should be preferred to a non-teacher for appointment as paper---setter/examiner. "
49. Regulation 12 reads as under:-- "(12)(a) In examinations, other than M.A./M.Sc., the answer-books shall be read in full by the external or neutral examiner in the first instance and then by the internal examiner, each being entitled to the full fee for examining the answer-books.
50. The difference in marking between the external and internal examiners, if any, shall be settled by mutual discussion or correspondence. In case they do not agree a third examiner shall be appointed whose awards shall be considered as final.
51. With effect from the annual examinations of 1969 Teachers in the Affiliated/Constituent Colleges and University Teaching Departments would act as internal examiners in respect of their own students appearing in the B.Sc. Honours, Part III Old Scheme and B.Sc. Honours, Part II New Scheme.
52. (b)In M.A./M.Sc. Examinations, the answer-books would be sent to the Internal Examiner in the first instance who would mark the answer --books independently and forward the same alongwith the award list to the University. These shall then be forwarded to the External Examiner for evaluation.
53. The External Examiner after evaluating these answer --books shall return them alongwith the award list to the University. The result of the candidates would be prepared on the basis of the average of the aware of the Internal/External Examiners, provided that if there is a difference of 20 marks or more in the awards of the two Examiners in a particular paper it would be referred to a third Examiner whose award shall be accepted as final.
54. No awards shall be recorded in the answer-books or its title page but these will be given in the award lists."
55. Regulation 23 of Chapter VII dealing with the conduct of examination is contained in. The Calendar of the University, Volume I (1977-78) mentions the powers of the Vice-Chancellor which is the most relevant for the decision of this case and is reproduced as under:-- "23. The Vice-Chancellor or an officer authorized by him may, on receipt of an application in the prescribed form addressed to the Vice-Chancellor and accompanied by a fee of Rs.600 per subject, (A&B), satisfy himself that-- (a)the result of the application has been correctly compiled and declared (this will include checking of answer-books, award lists and result sheets); (b)the answer-book is in the .Handwriting of the candidate himself. (In exceptional cases, the Vice- Chancellor may in his decision, allow the answer-book to be shown to the candidate or his guardian for verification of handwriting). This, however, shall not fetter the discretion of the Vice- Chancellor to get a particular answer-book or answer-books re-examined in exceptional cases where there is a strong ground to believe that the same have not been justly evaluated."
56. 8.A joint study of the special notification, dated 20-6-1988 and the Regulation contained in the Calendar reproduced above shows that so far as possible, a teacher, if otherwise equally qualified under the Rules should be preferred to a non-teacher for appointment as paper setter/examiner and in examinations other than M.A./M.Sc. The answer-book shall be read in full by the external or neutral examiner in the first instance and then by the internal examiner each being entitled to the full fee for examining the answer-books. The learned counsel for the respondent-University has submitted that the application of the petitioner was rejected in accordance with the spirit of Regulation 23 (A&B) is not proved on the record on the factual side and the re-evaluation by the Vice-Chancellor have been made in routine without making an inquiry whereby the bona fides could not be suspected. The learned counsel for the University has further submitted that the inspection and disclosure has been made that paper has been checked and marking has been correct and that re-- evaluation is not provided in the sense the petitioner wants. The contention is not appealing to the judicial mind as there is no sense in showing the paper and saying that marking is correct in case further right of re-evaluation is not provided to the candidate who has alleged mala fide and perversity it---s the marking and the evaluation. There is wisdom behind the right of showing actual answer book to the aggrieved candidate as being the first step to get his grievance redressed and not the last step. The next step is to get the answer book re-evaluated with all fairness and correctness. It is for this reason that the regulation of the University Calendar do provide re-evaluation and the machinery to procedure to make this right effective. It is well- settled that where there is a right there is a remedy and a remedy should be any effective remedy.
57. Mere allowing inspections or showing answer-book to the candidate cannot be said to be an effective remedy in case the candidate still feels aggrieved and 8 wants to get it re-evaluated. The argument of the learned counsel for the University that if it is allowed many students will come forward for getting their answer-books re-evaluated. - Such an apprehension can be said about any other right and is not a justified arguments. In Avadhani Meena and others v. Board of Secondary Education KLR 1982 Civil Cases 300 where the following passage of the Honourable Supreme Court of India given in the case of J.P. Kulshresta v. Chancellor, Allahabad University 1980 Lab. IC 692 (AIR 1980 SC 2141) was quoted which is relevant in the circumstance of this case and is reproduced for ready reference: -- "But University organs, for that matter any authority in our system, is bound by the rule of law and cannot be law unto itself .. In short while dealing with legal affairs which have an impact on academic bodies, theview of Educational Experts are entitled to great consideration, but not to exclusive wisdom. "
58. 1996 SCMR 263 wherein a similar question the Honourable Supreme Court of Pakistan observed as under:--- "It is pertinent to mention that under Regulation 23(b) of Chapter VII entitled 'Conduct of examination' contained in the Calendar of the University of the Punjab for the year 1990, Volume-I the Vice---Chancellor has been empowered 'to get a particular answer-book or answer-books re- examined in exceptional cases where there is a strong ground to .Believe that the same have not been justly evaluated. Therefore, the order of re-evaluation by the Vice-Chancellor was not a routine one. He was satisfied that there were strong grounds to believe that answer scripts were not justly evaluated. All this he would have decided on the basis of allegations made by respondent No. 1 which may not have been accepted without making any inquiry and at least there would have appeared at least a strong suspicion about the evaluation of the disputed answer scripts. In ~ such circumstances the Vice-Chancellor ought to have been more cautious and discreet in his actions. Bias, malice and mala fides vitiate all proceedings. The Courts while interfering with the discretion exercised by any authority have to be cautious, and have to ascertain from facts and circumstances, the existence of real likelihood of bias. Where, in cases it is difficult to prove bias the Court determines its existence on 'probabilities to be inferred from the circumstances'. Another approach to the problem is that after examining the facts and circumstances the Court has to determine whether a reasonable man could in the circumstances reasonably suspect the bona fides and ' (he) is left with the impression that there is a real likelihood of bias'. In de'Smith's Judicial Review of Administrative Action, Fourth Edition by J.M. Evans it has been observed at page 263 as follows:-- However, the pendulum has now swung towards a test of reasonable suspicion, founded on the apprehensions of a reasonable man who had taken reasonable steps to inform himself of the material facts. 'Reasonable suspicion' tests look mainly to outward appearances; 'real likelihood tests focus on the Court's own evaluation of the probabilities; but in practice the tests have much in common with one another, and in vast majority of cases they will lead to the same result. For the Courts to retain both tests as alternative methods of approach is unlikely to cause serious uncertainty, and there may be advantages in preserving a measure of flexibility. It would be surprising, surely, if a Court were to refuse to set aside a decision on the ground that a reasonable observer could not have discovered facts that subsequently came to light and which indicated to the Court that there was a real likelihood of bias in the adjudicator'.
59. Applying these principles we find that the facts and circumstances are sufficient to create a reasonable suspicion in the mind of reasonable man that the entire exercise for re-evaluation was biased.
60. Even in administrative matters it is not the sole discretion of the authority to pass orders in any manner it likes. It must follow the rules and principles of justice and equity so that even the person against whom order has been passed should not stamp it as mala fide and a result of bias or malice. Orders cannot always be in favour of the complainant, it may go against him but if malice is imputed for procuring the order which from circumstances seems to be prima facie possible then unless it is explained or rebutted it becomes difficult to justify it."
61. 9.In this view . Of the matter with all the care, caution and judicious restraint at my disposal I have no alternative but to interfere as the facts and circumstances in this case on the record are sufficient to create a reasonable doubt that the rules and principles of justice and equity have not been followed by the respondents in the matter of the petitioner. As such, the writ is allowed and respondent No.1 is directed to get the paper re-evaluated by the two examiners who are teachers in Customs, Central Excise and Sales Tax Laws.