1. ' ANWAR ZAHEER JAMALL J.---Constitutional Petitions Nos.D-168 of 1998, D-177 of 1998 and D-182 of 1998, based upon similar facts, raising common question for adjudication, were heard together and dismissed by us by our short order dated 1-2-1999. Relevant facts of each petition and common reasons for the same areas under: ' In C.P. No, D-168 of 1988, Miss. Rukhsana d/o Ghulam Nabi Soomro has submitted that she is a student of Government Girls College, Larkana. She appeared as a regular candidate, in the Higher Secondary Certificate (Part-1) Annual Examination of 1997 (Pre-Medical Group) under Seat No, 12514 and secured 438 total marks and such marks certificate was issued to her which reflected aim she had obtained 67 marks in Physics (Theory) and 60 marks in Chemistry (Theory). Next year she appeared in the Higher Secondary Certificate (Part-II) Annual Examination 1998 (Pre-Medical Group), under Seat No, 58389 and the result of this examination was announced by the respondent No,3 on 7-11-1998, but her result was withheld and shown as under query'. The petitioner approached the respondent No, 3 for decision and issuance of marks sheet in respect of her. Seat No,58389. She also sent a telegram to the respondents in this regard on 20-11-1998. After 2 weeks her result was announced and she was declared as passed in Grade-B. When combined marks certificate of H.S.C. Part.1 and Part.II was issued to her she found that in this combined marks certificate, in Physics (Theory) Part-I instead of 67 marks 47 marks were shown and in Chemistry (Theory) part-I instead of 60 marks, 30 marks were shown. As a result of this the total marks secured by the petitioner shown as 720 instead of 770, as actually claimed by the petitioner. On the basis of these facts, the petitioner prayed for the following relief: "(a) To declare that the action of respondents towards reducing the marks from 67 to 47 in Physics (Theory) and in Chemistry (Theory) from 60 to 30 is illegal, void, and without lawful authority and based on mala fide intention.
(b) To direct the respondents as to issue the revised marks certificate on the strength of the marks already obtained by the petitioner in Physics and Chemistry subjects as shown in Annexure 'A' accordingly in order to enable the petitioner in participating in pre-admission test of medical seat which is likely to be, held on. 24-1-1999.
(c) Costs of the petition be awarded.
(d) Any other relief, to which the, petitioner is entitled."
2. ' In C.P No, D-177 of 1998 Miss. Fatima Zuhra daughter of Abdul Ghafoor submitted that she is a student of Government College, Thul, District Jacobabad. She appeared as a regular student in Higher Secondary Certificate (Part-I) Annual Examination, 1997 (Pre-Medical Group) under Seat No, 2418 and secured total 437 marks and such marks certificate was issued to her by the respondent No,3. In this examination she had obtained 64 marks in English-I, 66 marks in Chemistry-I (Theory) and 63 marks Biology-I (Theory). After passing of her examination in the year, 1997. Next year, the petitioner appeared in Higher Secondary Certificate (Part-II) Annual Examination, 1998 (Pre- Medical Group) under seat No, 51044 which were held in May, 1998. When the result was announced on 7-11-1998 the petitioner was declared as failed, whereupon she immediately approached the respondent No,3, through her father for issuance of marks certificate. When marks certificate was issued on 4-12-1998, it revealed that she was shown absent in English-I, Chemistry-I, Biology-I and Biology Practical-II though she had already passed these examinations and such marks certificate was issued to her. Thereafter, the petitioner had been approaching the Respondent No, 3 for correction of her marks certificate so that she may apply for admission in Medical College. The petitioner also filed a civil suit in the Court of IInd Senior Civil Judge, Larkana, but the same was later on withdrawn. The petitioner, on the basis of above assertions, has claimed for the following relief in her petition:-- "(a) Declare that the action of respondents towards reducing the marks from 64 to 26 in English-I, from 66 to 16 in chemistry-I (Theory), from 63 to 16 in Biology-I (Theory) and absence in Biology Practical-II, is illegal, void, without lawful authority and is based on mala fide intention.
(b) Direct the respondents to issue Revised Marks Certificate on the strength of Marks clearly obtained by the petitioner as shown in Annexure 'A', in order to enable to the petitioner to participate in preadmission test of Medical College.
(c) Award costs of petition.
(d) Pass any order in favour of the petitioner against the respondents as deem fit and proper, under the circumstances of the petition."
3. ' In C.P. No, D-182 of 1998, Qamar Zaman son of Mumtaz Ali has submitted that he is a student of Government Degree College, Thul. He appeared as a regular student in the Higher Secondary Certificate (Part-I) Annual Examination. 1997 (Pre-Engineering Group) under Seat No, 16479 and secured 425 marks and was declared successful in all the subjects and such marks certificate was issued to him by the respondents on 8-6-1997. The marks certificate so issued to the petitioner revealed that he has obtained 87 marks in Maths-I (Pre-Engineering) Paper. Next year the petitioner appeared in the Higher Secondary Certificate (Part-H) Annual Examination, 1998, (Pre- Engineering Group) under Seat No, 63553 and he appeared in all the six papers. However, when the result of this examination was announced by the respondent No,3 on 28-10-1998, the result of the petitioner was withheld and shown under query. The petitioner immediately approached the respondents for decision of his withheld result but after 1-1/2 month of the announcement of the result, when his result was disclosed, he was declared failed in the examination and as per marks certificate issued to him he found that he has been shown as absent in Maths-1 Paper while in Chemistry-II (Theory) paper he has been awarded only 21 marks. The petitioner approached the respondent No,3 about his grievance and was informed that instead of 87 marks he had obtained 13 marks in Maths-I Paper and, therefore, he had to re-appear in this subject. The petitioner further submitted that he has actually secured 759 marks but in his marks certificate his total marks have been shown as 672. The petitioner has prayed for the following relief in his petition: "(a) To declare the action of the respondents towards deleting 87 marks actually obtained by the petitioner in Paper-I Maths from Total Marks in combined Certificate No, 034941 and showing petitioner absent in Paper-I Math and awarding less marks in Paper-II of Chemistry Theory and refusing to award grace marks is illegal, void, and without lawful authority and based on mala fide intention.
(b) To direct the respondents to issue revised marks certificate on the strength of the marks already obtained by the petitioner in paper-I Maths and shown in Annexure 'A' accordingly and award grace marks as provided under rules in order to enable the petitioner to participate in pre- engineering test which is likely to be held in the month of February, 1999.
(c) Cost of the petition be awarded.
(c) Any other relief to which the petitioner is entitled."
4. ' In Constitutional Petition No, D-168 of 1998 and D-177 of 1998 initially preadmission notice and notices were issued to the respondents and also comments were called, however vide order dated 21-12-1998 these petitions were admitted for regular hearing. In Constitutional Petition No, D-182 of 1998 pre-admission notices were issued to the respondents, and also comments were called from the respondents Nos. 2 and 3 on 24-12-1998. In response to the above the respondents Nos. I to 3 in all these petitions have filed their written reply wherein they have denied the claim of the petitioners in each case.
5. ' In C.P. No D-168 of 1998 the respondents Nos. I to 3 have submitted that the claim of the petitioner that she secured 67 marks in Physics-II (Theory) and 60 marks in Chemistry-I (Theory) is incorrect, as in fact the petitioner has secured 47 marks in Physics-I (Theory) and 30 marks in Chemistry-I (Theory), but due to manipulation and tampering in the ledger, by one Zaheeruddin Daudpota in collusion with the then Controller of Examination (Khalid Saifullah Chacher) and Chairman of the Board (Mr. Ghulam Sarwar Thaheem) such manipulation, and inflation in the marks was managed.
6. ' On complaint the Governor of Sindh, who is also the Controlling Authority of the Board, had constituted an Enquiry Committee comprising of Mr. Khadim Hussain Junejo, Advisor to the Provincial Ombudsman, Prof. Dr. Allah Rakhio, holding additional charge of Chairman Larkana Board and Mahmood-ul-Hassan Khokhar Controller of Examination Board of Intermediate and Secondary Education, Sukkur, holding additional charge of Larkana. This enquiry committee after checking the entire record found that the marks of 129 candidates, including the petitioner, were inflated. The subsequent marks certificate issued to the petitioner contained the correct marks secured by the petitioner in these subjects.
7. ' The respondents Nos. 1 to 3 in their reply to the allegations of the petitioner, in C.P. No, D-177 of 1998, submitted that the claim of the petitioner that she secured 64 marks in English-I, 66 marks in Chemistry-I (Theory) and 63 marks in Biology-I (Theory) is false as in fact she secured 26 marks in English-I, 16 marks in Chemistry-I and 16 marks in Biology-I, and she is also one of the 129 candidates, whose marks were found manipulated and inflated by enquiry committee (supra).
8. ' The respondents Nos. 1 to 3, in their reply to the allegation of the petition in C.P No, D-182 of 1998, submitted that the petitioner has not secured 87 marks in Maths-I (Pre-Engineering) but has secured only 13 marks and he is also one of the 129 candidates whose marks were found inflated by the Enquiry Committee (supra). As for Chemistry-II (Theory), the petitioner secured only 21 marks, however, on her application for recounting which was allowed as per rules, when recounting was made it was found that by mistake two marks were given in excess,.Thus, marks were corrected as 19.
9. ' We have heard Mr. Muhammad Anwar Channa, the learned counsel for the petitioner (Miss.
10. Rukhsana Soomro) in C.P. No, D-168 of 1998. He mainly contended that the action of the respondents resulting in decreasing of marks of the petitioner in two subjects viz. Physics-I (Theory) and Chemistry-I (Theory) is in violation of the principle of natural justice as she has been condemned unheard in the matter. In support of his contention he has placed his reliance on the case law reported as Syed Qasim Ali Shah v. The Director Food, Punjab, Lahore and another (NLR 1994 SCJ 425), Board of Intermediate and Secondary Education, Lahore v. Saima Azad (1996 SCM R 676) and Shahzad Munawar Butt v. Vice-Chancellor University of the Punjab and 2 others (1990 CLC 316).
11. ' The learned counsel further contended that the petitioner has actually secured the marks as mentioned in marks Certificate No, 007198 but in the consolidated marks certificate 034384, malafidely her marks in two subjects have been reduced by the respondents Nos. 1 to 3 and such action of the respondents is illegal and liable to be declared as without lawful authority.
12. ' Mr. Munir Hussain Khichi, the learned counsel for petitioner (Miss. Fatima Zuhra) in C.P. No, D- 177/98, and Mr. Bilawal Khan Buriro the learned counsel for petitioner (Qamar Zaman) in C.P. No, 182 of 1998 have adopted the same arguments as advanced by the learned counsel for the petitioner in C.P. No, D-168 of 1998.
13. ' Conversely, Mr. Illahi Bux Kehar, the learned counsel for the respondents Nos. 1 to 3 in these petitions has argued that the contention of the petitioners that they have been condemned unheard has no force for the simple reason that no adverse action has been taken or order has been passed against them, but when the Enquiry Committee, legally constituted by the Governor of Sindh, on verification of result ledger' with the original marks slip, prepared by the examiner, found that there was inflation and manipulation in the marks of 129 candidates, such mistake, within the domain of respondents Nos. 1 to 3 was rectified. The learned counsel further contended that even if existence of such right of hearing is presumed on the principle of natural justice, then such a right, is not absolute in nature, but it would depend on the facts and circumstances of the each case whether a party is entitled to it or not. The learned counsel has referred to:--
(i) Rehana Mahmood and 3 others v. Azad Government and 5 others (1997 M.L.D. 2874 SC (AJ&K).
(ii) Muhammad Rashid v. Azad Jammu and Kashmir Government (PLD 1987 SC (AJ&K) 60).
14. ' Lastly the learned counsel contended that the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is purely discretionary in nature and, therefore, a writ cannot be issued in aid of injustice. Referring to the facts of these petitions he submitted that the petitioners have managed such manipulation of marks in result ledger in connivance with the staff members of Respondent No,1 who have already been suspended on the bases of enquiry report submitted by Enquiry Committee. In such circumstances, it is evident that the petitioners have not ,approached this Court with clean hands, and, therefore, they are not entitled for any relief. Reference, in this regard, has been made to the case of Zameer Ahmed and another v. Bashir Ahmed and others (1988 SCM R 516).
15. ' Mr. Rashid Ali G. Shaikh learned counsel for A.A.-G. Appearing on behalf of respondent No,4 has adopted the same arguments as advanced by Mr. Kehar.
16. ' We have carefully considered the arguments advanced by the learned counsel for the parties and perused the case record. We have also perused the relevant original record, including the result ledger and the original marks slips of the disputed subjects of each petitioner, with the assistance of respondent No,3 as well as Assistant Controller of Examination Mr. Barkat Ali Mehar, who were present in Court at the time of arguments alongwith such record. After perusal of this original record, photostat copies of the relevant documents, have also been taken on the file of each case.
17. ' On a careful and detailed examination of these documents we are satisfied that the contention of the petitioners that in the consolidated marks certificate their marks have been reduced, is without any substance. The original marks slips which were prepared by examiner, who have assessed the answer books of the petitioners, and also countersigned by the Head Examiner, reveal that the actual marks secured by each candidate in each paper, have been specifically mentioned in "Words", obviously for the reason to avoid any risk of tampering in it. From all this, it is also clear that the respondents Nos. 1 to 3 have not taken any such adverse action against the petitioners, entitling them for any opportunity of hearing in the matter, but simply the manipulations made by the staff of respondent No,1 in the marks of 129 candidates detected during the enquiry by the Enquiry Committee, have been rectified with the help of other authentic record of examination maintained by the respondents Nos.I to 3. Since the respondents Nos. 1 to 3 have acted in a legal and proper manner it cannot be said that they have acted malafidely.
18. We are also in agreement with the arguments of the learned counsel for the respondents Nos.1 to 3 that right of hearing, when claimed on the principle of natural justice, is not an absolute right, but it will be the facts and circumstances of each case which will enable a Court to draw a proper conclusion in this regard. To dilate and amplify this legal position it will be useful to reproduce here some relevant case law on this subject:
(i) The Chairman, Board of Mining Examination and Chief Inspector of Mines, and another v. Ramjee (AIR 1977 S.0 965)
19. "Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential procession propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be financial nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt--that is the conscience of the matter."
(ii) Union of India and another v. Tulsiram Patel (AIR 1985 SC 1416).
20. "So far as the audi alterm partem rule is concerned, both in England and in India, it is well- established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. This right can also be excluded where the nature of the action to be taken, its object and purposes and the scheme of the relevant statutory provisions. Warrant its exclusion; nor can the audi alterm partem rule be invoked if importing it would have the effect of paralysing the administration process or where the need for promptitude or the urgency of taking action so demands."
(iii) R.S. Dass v. Union of India and others (AIR 1987 SC 593), "It is well-established that rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and the background of statutory provision, nature of the right which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case. These principles do not apply to all cases and situations. Applications of these uncodified rules are often excluded by express provision or by implication."
(iv) Abdul Qadir and others v. The Settlement Commissioner and others (PLD 1991 S.0 1029)
21. "It may be remarked that right of opportunity of hearing is not merely a technical right. It has often been observed by the superior Courts that it is linked with tangible, factual and legal aspects of the case and it would depend upon the facts and circumstances thereof as to whether the observance of the technical rule of audi alteram partem by a lower forum and ritualistic performance in this behalf would serve the ends of justice or it would negate the ends of justice."
(v) Muhammad Rashid v. Azad Jammu. And Kashmir Government and 20 others (PLD 1987 SC (AJ&K) 60)
22. "There is no gainsaying that the rule embodied in the maxim 'audi alterm partem' is well- entrenched in our system of law but for earning a right of hearing, a person must show that he was deprived of some right vested in him."
(vi) Rehana Mahmood and 3 others v. Azad Government and 5 others (1997 M LD 2874)
23. "It goes without saying that the aforesaid maxim 'audi alterm partem' has gained a great significance in our judicial system but earning a right of hearing a person must show that he was deprived of some right vested in him."
24. From the perusal of the above case law it is evident that there is a clear distinction between the two situations, one where the right of such hearing is statutory and the other where such right is claimed on the principles of natural justice. In the former case such right is almost absolute, while in the later case it is not so and exclusion of such right could be express, or implied. Reverting to B the facts of the present case it is clear that there was no statutory right subsisting in favour of the petitioners but they have attempted to set up such claim on the 'principle of natural justice. In the facts and circumstances of this case we find that when only correction in the marks ledger has been made by the respondents Nos. 1 to 3 on the bases of genuine and authentic record of each candidate . The petitioners on the pretext of violation of any principle of natural justice cannot claim any,such right.
25. ' In the case of Board of Intermediate and Secondary Education Lahore v. Saima Azad (1996 SCM R 676), referred by the learned counsel for the petitioners the Hon'ble Supreme Court of Pakistan has observed as under: "The High Court while exercising jurisdiction under Article 199 of the Constitution was not justified in summoning the answer books of whole lot of the examinees in order to evaluate and find out whether the examiner had carried out the marking of numbers in the case of respondent/examinee correctly or not? The marking of numbers on answer book is a technical job performed by experts which the High Court is not expected to undertake in exercise of its power of judicial review under Article 199 of the Constitution. The jurisdiction of High Court under Article 199 of the Constitution is principally meant for correcting the jurisdictional error in the order and proceedings of tribunals and executive authorities. This jurisdiction cannot be invoked for obtaining decisions on merits Which the functionaries alone are entitled to take under the law."
26. "The contention of the learned counsel for the respondent if accepted will lead to dangerous consequences, as it will open the door for every unsuccessful candidate to challenge the result of his examination in Court, thus, involving the Educational Institutions into unending and unethical litigations and bringing the whole system of examination in vogue, at stake. The solemnity of Educational Institutions and process of examination cannot be sacrified on the altar of expediency.
27. As earlier stated by us, the jurisdiction of the High Court under Article 199 of the Constitution is meant for correcting the errors of jurisdictional nature. Therefore, in order to succeed, the respondent must first satisfy that the issue brought by her before the Court is justiciable under Article 199 of the Constitution."
28. ' Also see: Maharashtra State Board v. Paritosh (AIR 1985 SC 1543).
29. From the above observations of the Hon'ble Supreme Court, it can be safely concluded that in the matters relating to the Educational Institutions, involving examination process or disputes about assessm ent and marking in the answer books, this Court will be reluctant and extra cautious in extending its writ jurisdiction.
30. ' Besides this, in several cases the Hon'ble Supreme Court of Pakistan has observed that under Article 199 of the Constitution, the jurisdiction of this Court is discretionary in nature and this Court will decline to exercise such jurisdiction in the cases where such exercise of jurisdiction will work in aid of injustice or will protect some ill-gotten gains of a party. Reference may be made to the following case law:---
(i) Zameer Ahmed and another v. Bashir Ahmed and others (1988 SCM R 516),
(ii) Export Promotion Bureau and others v. Qaiser Shafiullah, (1994 SCM R 859),
(iii) Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351).
31. ' For the preceding reasons these petitions were found without substance and were dismissed.