This judgment shall dispose of Writ Petitions Nos. 1522 of 2000, 1538 of 2000 and 1685 of 2000. The petitioners in all these three cases appeared in the Federal Public Service Commission, Competitive Examination, 1999. The cause of grievance in the said three petitions is as under: --
(i) Petitioner in Writ Petition No. 1522 of 2000 secured 3 out of 50 marks in English Essay;
(ii) petitioner in Writ Petition No. 1535 of 2000 secured 36 out of 100 marks in Islamiat; while
(iii) petitioner in Writ Petition No. 1685 of 2000 secured 10 out of 50 marks in English Essay.
All of them have been declared as failed. According to the petitioners, in view of their earlier performance in the said papers in previous examinations conducted by respondent No. I , it is highly improbable that they would have secured so little marks. They had approached respondent No. l for re--evaluation of their papers but the request has been denied in view of Rule 7(viii) of the Federal Public Service Commission Rules for Competitive Examination, 1999.
2. Pursuant to the orders passed by this Court, a report and parawise comments have been filed in all the cases wherein the allegations of the petitioners have been denied and reliance has been placed upon the said Rule for refusing the said request of the petitioners.
3. Sardar Muhammad Aslam, Advocate opened the arguments in these cases. Learned counsel contends with reference to the case of Avadhani Meena and others v. Board of Secondary Education KLR 1982 CC 300 a case decided by the High Court of Bombay, that the said Rule which places a prohibition on the re-evaluation of papers of a candidate is void. Further argues .That in the interest of justice and to ensure the transparency of the process of selection of candidates for service of Pakistan, a procedure for re--evaluation ought to be provided and not curbed.
Mr. Amjad Hameed Ghauri, Advocate and Mr. Tajamul Murad, Advocate argue with reference to the case of Board of Intermediate and Secondary Education, Lahore v. Mst. Salma Afroz and 2 others PLD 1992 SC 263 that the alleged failure of their respective clients in the Essay Paper suffer from inherent fraud in the system.
4. Learned Standing Counsel, on the other hand, argues that the said Rule is ultra vires and since no grounds have been made out in the petitions in hand for interference, the petitioners have no case for seeking certiorari and mandamus sought for by them. He relies on the case of Board of Intermediate and Secondary Education, Lahore v. Saima Azad 1996 SCM R 676 and Tahir Saeed Qureshi V. Board of Intermediate and Secondary Education, Sargodha and 3 others 1996 SCM R 1872.
5. I have gone through the contents of the writ petitions, the documents accompanying them as also the comments filed by the respondents.
6. The case of Avadhani Meena relied upon by Sardar Muhammad Aslam, Advocate, no doubt fully supports the proposition canvassed by him that the prohibition imposed vide the said Rule 7(viii) is violative of the principle that every student has the right to receive fairplay in examination and get appropriate marks matching with his performance, though he has no right to particular marks, as results of examination entail civil consequences. However, I find that the learned author Judge at page 303 of the said report has sought to make distinction between the subjective and objective types of written examination. Essay type has been placed by his Lordship in the former category while opining that answers to subjective type of questions cannot be assessed as wholly right or wholly wrong. They are usually awarded marks according to the extent to which the examiner considers that the candidate has introduced all the relevant facts or arguments or a sufficient number of them. The candidate's ability to write with clarity and precision, or even with what the examiner regards as a pleasing style, may also affect .The result. I have also noted that the brother Judge sitting in the Bench which delivered the said judgment expressed reservations but still agreed with the main theme of the judgment. On the other hand, I find that absence of a provision for re-evaluation or prohibition on re-evaluation in Calenders and Rules of Educational Institutions .In our country have not been considered to be void or ultra vires altogether. However, the superior Courts have laid down the Rules for interference with examination results by Courts and direction of re-evaluation of the papers of the aggrieved candidates. I find such Rules spelt out in the case of Salma Afroze relied upon by Mir. Amjad Hameed Ghauri, Advocate. Their Lordships in para. 17 of the report at page 271 have observed with reference to the case of Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 that every authority, every Tribunal and every Court has been Lordships observed:-- "If there was criminal design or a fraud perpetuated on the candidates or a manifest case of victimisation by the examiners, 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."
7. In the light of the said Rule, I called upon the learned counsel for the petitioners to demonstrate from the respective writ petitions as to whether factual foundation has been laid enabling the Court to act in their aid on the said principles. The learned counsel have been unable to do so. I have myself examined the writ petitions and I do not find any foundations therein for issuing mandamus being claimed by the petitioners.
8. Upon the insistence of the learned counsel I have examined the concerned papers as well which were brought to the Court by the respondent officials in sealed envelopes. I find that the total marks have been correctly calculated. So far as the award of marks is concerned, suffice it to say that I do not find any apparent non-application of mind. I also find that in two of the papers (Writ Petitions Nos.1522 of 2000 and 1533 of 2000) I may say that the examiners have made notes in the margins while evaluating the paper which in a manner of speaking provide reasons for the manner of , the marking.
9. The judgments relied upon by the learned Standing Counsel do go to support his contention to the extent that prohibition of the nature spelt out in the said Rule 7(viii) cannot be said to be ultra vires at least in the circumstances of the present cases. No other point has been urged. All the three writ petitions are accordingly dismissed leaving the parties to bear their own costs.