' MANZOOR HUSSAIN SIAL, J.---This petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, has been filed by the University of the Punjab and another, hereinafter referred to as "petitioners" seeking leave to appeal against judgment dated 28-2-1993, of the Lahore High Court, whereby Writ Petition No,10639/92 filed by the respondent was allowed.
2. The facts in brief, giving rise to this petition, are that Dr. Aamer Mahmud Ijaz respondent herein, appeared in M.S. Thoracic Surgery Examination held by the petitioners, in the month of July, 1992.
The aforesaid examination consists of three papers, namely, (i) General Surgery, (ii) Thoracic Surgery and (iii) Pathology. The respondent secured 40, 60 and 62 marks respectively in the three papers. The result was declared on 12-9-1992 and he failed in the examination, as he could not obtain qualifying marks in the first paper. He immediately applied to the petitioners for rechecking of his answer books and learnt that three leaves containing six pages were missing from his answer book relating to Paper I of General Surgery wherein he was awarded 40 marks only.
3. The respondent thereafter, on 17-9-1992, moved an application to the petitioner No,1, wherein stated that he failed in the examination due to loss of the pages from his answer book relating to paper I. He further pointed out that as he had obtained 60% marks in the other two papers, he be given the benefit of average marks obtained by him in other two papers.
4. The petitioners made reference to one Professor, Iqbal Ahmad Khan who had acted as Governor among the examiners for evaluation of the scripts and interviewing the candidates for report about the loss of pages from the answer book and whether he noted any discontinuity in the answers to the questions solved by the candidates, if so whether the same was confronted to the candidate when the was interviewed. In reply he stated that no discontinuity of answers was noticed while evaluating the answer book and therefore, the candidate was not confronted with any question regarding his answer book. He further mentioned that the answer book was assessed as a whole and found unsatisfactory and poor. On receipt of the reply the petitioner No,2 on 29-10-1992, rejected respondent's request to award him average marks on the basis of marks obtained by him in the other two papers.
5. Aggrieved by the aforementioned decision of the petitioners; the respondent invoked the Constitutional jurisdiction of the Lahore High Court through Writ Petition No,10639/1992 which was allowed vide impugned judgment dated 28-2-1993, holding the respondent entitled to the award of 61 marks in the relevant paper and thereby declaring him successful in the examination. In terms of the aforesaid order, the petitioners were directed to issue formal notification declaring the respondent successful in the examination. Hence this petition.
6. Ch. Mahmood Farooq, the learned counsel for petitioners, contended that the impugned judgment of the Lahore High Court was in disregard of the provisions of law and material/evidence available on the record. In order to reinforce his contention learned counsel referred to letter dated 1-10-1992, of Professor Muhamamd Iqbal, the convenor addressed to petitioner No,2, wherein he reported that at the time of evaluation of the answer book no discontinuity in, answers to the questions was noticed by him.
7. We have heard learned counsel for petitioners at some length and have also perused the documents on the file. It is not denied by learned counsel for petitioners that six pages of the relevant answer books were missing/lost before the checking was undertaken by the respondent.
Learned counsel for petitioners has not been able to point out from the material on the record, as to who was responsible for the admitted loss of the pages from the answer book of the respondent.
The reply furnished by the convenor that he did not notice discontinuity in the answers, when the paper was evaluated does not conclusively prove that the pages were torn from the answer book prior or after the evaluation, particularly when the answer book was assessed as a whole and not each answer to the question was separately evaluated, which is significant departure from the usual and established mode of evaluating the scripts. The learned counsel for petitioners, stated that the University Authorities have already taken cognizance of this matter, and instructions issued to the examiners, not to assess answer book as a whole but to evaluate each answer to the question separately.
8. The question as to whether the case of respondent is covered by Regulation No,6 framed under section 32 of the University of Punjab Act, 1973, it would be useful to reproduce hereunder the relevant Regulation: "If a candidate's paper is lost after having been received by the Superintendent of the Examination Centre or by one of his assistants, and if he passers in all other subjects of the examination, he may be required to appear in that one paper which is lost on a date fixed by the Controller of Examination, and if he obtains pass marks he shall be deemed to have passed the examination. In case of dispute as to whether a candidate's paper was duly received or not, the finding of the Controller of Examination, subject to the approval of the Vice-Chancellor, shall be final: ' Provided that if an answer book/s received by an Examiner is/are lost before or after evaluation, average of the marks obtained by the candidate in other papers in which he has appeared shall be awarded to him in the said paper. The candidate shall, however, have the option either to avail the average of the marks or to re-appear in the paper: ' Provided further that the benefit of grant of average marks will not be given to candidates in cases of re-checking of answer books after declaration of their results, if their answer book/s is/are lost at the time of rechecking. They will, however, have the option to reappear in the paper/s in the next examination, if otherwise eligible.
The candidate will also be allowed to claim refund of fee for rechecking."
9. The first proviso to Regulation No,6, clearly takes care of the situation where the answer book received by the examiner is lost before or after evaluation, so as to entitle the candidate for the award of average marks obtained by him in other two papers. The respondent's case is fully covered, as six pages of his answer book were found lost/torn. He having secured more than 60% marks in other two, papers, he was entitled to 61 marks in Paper I of General Surgery.
10. We have examined the relevant provision of Regulation No,6 and find that learned Single Judge in Chambers, committed no error, in interpreting the same.
11. We are, therefore, of considered view, that this is not a fit case for grant of leave to appeal in the matter.
12. In the result, this petition has no merit and it is accordingly dismissed.