1. MIAN MUHAMMAD AJMAL, J.---Under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 leave to appeal has been sought against the judgment of the Peshawar High Court, Peshawar dated 26-9-2001, whereby Writ Petition No, 869 of 2001 of the petitioner, was dismissed.
2. Background of the case is that the petitioner appeared in C.S.S. Examination, 1999 held in January, 2000 but failed. On receipt of the detail marks certificate, he found to have obtained zero out of 50 marks in English Essay paper, which according to him, was the cause of his failure in the examination. He submitted applications for re-checking/re-evaluating the said paper on 28-6- 2000 and 6-7-2000 which were not responded. He made third application for the same purpose on 30-11-2000, in response whereof letter dated 13-12-2000 was issued to him, disclosing that his earlier applications dated 28-6-2000 and 6-7-2000 were considered by the Commission and he was informed about the fate of the said applications vide letter dated 21-7-2000, as such, application dated 30-11-2000 was turned down/refused. The petitioner then filed Writ Petition No, 64 of 2001 before the Peshawar High Court, Peshawar which was disposed of on 29-5-2001 as under:-- "Instead of directing the Commission to send the answer sheet of the petitioner to another Examiner or panel of Examiners lest our order may not open door for every unsuccessful candidate to challenge the result of his/her examination in Court and thus involving the Commission into unending and unethical litigation and bringing the whole system of Examination in vogue, at stake, we deem it appropriate to remit the case back to respondent No,1 with the directions to re-consider the representation of the petitioner after affording him reasonable opportunity of hearing. The Commission shall decide the representation within fifteen days in the light of the above observations. The writ petition is disposed of accordingly."
2. After remand, the Commission concluded as under:-- "this Commission has reverified the position on the subject, which shows that you were rightly awarded the marks in your English Essay Paper. Of CE 1999, as already conveyed to you vide CE Marks sheet dated 13-6-2000."
3. He then filed Writ Petition No, 869 of 2001 before the Peshawar High Court, Peshawar. The High Court vide order dated 24-7-2001 summoned the examiner for 31-7-2001, who appeared and observations were recorded by the High Court on the said date. Consequently, the High Court vide its judgment dated 26-9-2001, dismissed the writ petition of the petitioner holding that the above observations were sufficient to dispose of the writ petition.
3. Learned counsel for the petitioner contended that in order to avoid conflicting and contradictory judgments of the two writ petitions it was necessary that Writ Petition No, 869 of 2001 should have been placed before the same Bench which had heard the earlier Writ Petition No, 64 of 2001. He submitted that the earlier Bench had observed that the petitioner had secured 20 marks in English Essay Paper which were converted into zero by cutting said marks and in view thereof it remitted the case to the Federal Public Service Commission for its reconsideration but the Commission stuck to its previous stand and the petitioner constrained of such situation filed Writ Petition No, 869 of 2001 which came up before a different Bench who while relying on the observations of learned Division Bench recorded on 31-7-2001 dismissed the writ petition.
4. After hearing the learned counsel for the petitioner and going through record of the case, we find no substance in the aforesaid contentions, for the learned Benches before whom Writ Petition No, 869 of 2001 was fixed from time to time, were conscious of the fact of the earlier writ petition and the judgment given therein. Some of the orders contained in the order sheets are reproduced hereunder:- "24-7-2001: We have perused the judgment of this Court delivered on 29-5-2001 pursuant to which the petitioner was heard by the Commission but the Commission showed its inability and had referred the matter to the examiner who has sent his report alongwith paper re-affirming what stand he has taken earlier. We doubt, if the examiner has understood the implications and substance of the judgment in the light of which he was to go through the paper again. We would, therefore, direct Mr. Fakhre Alam Director (Secretary), Federal Public Service Commission to convey the order of this Court to the examiner to appear before us in Chamber on 31-7-2001.
4. (Sd.)
5. Tariq Pervez Khan, Shahzad Akbar Khan, Judges."
6. "31-7-2001: In view of our direction and observation of 24-7-2001 the examiner of the paper appeared alongwith Mr. Fakhre Alam Director (Secretary), Public Service Commission, Islamabad.
7. Mr. Salahuddin Khan, Deputy Attorney-General is also present and we in the Chamber, in order to keep the identity of the examiner, secret, showed the answer sheet of the petitioner to the examiner and asked him if he has gone through the judgment of this Court delivered on 29-5-2001 and if he has understood what was required by this Court, his reply was in affirmative. We asked him about the attempted question for which the petitioner was given zero marks and when explained we agreed with the examiner that the petitioner has though attempted the question. But he has not that all understood the question and has wrongly given the reply under wrong assumption and wrong understanding of the question. The contention of the learned counsel for the petitioner that at least some marks should have been given if the substance of the answer was not up to the mark will not hold the field when the answer was not at all relevant to the question asked.
8. (Sd.)
9. Tariq Pervez Khan, Shahzad Akbar Khan, Judges."
10. "29-8-2001: Adjourned to 30-8-2001.
11. (Sd.)
12. Talat Qayyum Qureshi, Ijaz-ul-Hassan, Judges."
13. "30-8-2001: The petition be fixed in the 3rd week of September.
14. C.M. No, 986 of 2001.
15. C.M. Shall be taken up alongwith the main writ petition (Sd.)
16. Talat Qayyum Qureshi, Ijaz-ul-Hassan, Judges."
17. "20-9-2001: On the same subject-matter previously a Writ Petition No, 64 of 2001 was filed in this Court which was decided on 29-5-2001. The author of the judgment of said writ petition was his Lordship Mr. Justice Talat Qayyum Qureshi. In the judgment the learned Judge has requisitioned the question paper and has gone through it and observed that "First sheet of the answer book shows that the learned Examiner had granted 20/50 marks to the petitioner which were later on converted into zero by cutting the actual marks given to him". In this background and given situation it would be advisable that this petition alongwith C.M. Be placed before a Bench in which the Hon'ble author Judge is a member. The learned counsel for the petitioner requested that as interview for C.S.S. Is going to be concluded on 27th instant, therefore, being a last Division Bench today, the writ petition be sent to the Hon'ble Bench in which author Judge is sitting as a member.
18. In view thereof, the office is directed to place the writ petition alongwith C.M. Before Bench of which His Lordship Mr. Justice Talat Qayyum Qureshi is sitting as a member today, after being brought to the notice of Hon'ble Chief Justice.
19. (Sd.)
20. Malik Hamid Saeed, Ijaz Afzal Khan, Judges."
21. "20-9-2001: In view of the amendment in law (Ordinance XVI of 2001) by which right of appeal to the candidate aggrieved of the order by the respondent, Federal Public Service Commission has been given, the petitioner can file an appeal before this Court, learned counsel for the petitioner wants to make an application for conversion of this writ petition into appeal. His request is allowed. He may do so within two days and then the case be fixed on 25-9-2001.
22. (Sd.)
23. Mian Shakirullah Jan, Talat Qayyum Qureshi, Judges."
24. It may be noted that on 29-8-2001 and 30-8-2001, the writ petition was fixed before a Bench in which the author Judge was a senior member but the same was adjourned to a next date. On 20- 9-2001, the Bench seized of the case observed that in the judgment of the previous writ petition certain observations were made by the learned author Judge, therefore, it would be appropriate to place the writ petition alongwith the C.M. Before the Bench in which learned author Judge was a member, and it directed the office to place the writ petition and the C.M. Before the Bench in which learned author Judge was sitting on the same day. This order was complied with and writ petition was placed before Bench of which learned author Judge was a member but the learned Bench postponed the case on technical ground i.e, for conversion of writ petition into appeal. It is manifest from the above order sheets that Writ Petition No, 869 of 2001 did come for adjudication before a Bench in which the learned author Judge was sitting but it was adjourned for one reason or the other. In the impugned judgment, the learned Bench has given the background of the case relating to Writ Petition No, 64 of 2001, which shows that the learned Bench was aware of all events that had taken place in the proceedings of Writ Petition No, 64 of 2001. Since the later Bench was aware of the facts of the previous writ petition and its judgment, which find mention in the impugned judgment, therefore, the Bench after considering all these facts decided the writ petition and thus no prejudice has been caused to the petitioner by decision of the writ petition by a different Bench.
5. Under Rule 7(viii) of the Rules of the Competitive Examination, 1999, answer papers are secret documents and cannot be seen by the candidates or their representatives nor re-examination of answer books is allowed in any circumstances. The said rule is reproduced hereunder:-- "Answer papers in all the subjects of examination are secret documents and cannot, therefore, be permitted to be seen by the candidates or their representatives nor re-examination of answer books/scrips is allowed under any circumstances. A candidate desirous of getting of his/her marks, awarded by the examiners recounted may submit his request for the purpose within one month from the date of issue of result card/marks sheet alongwith a Treasury Challan of Rs,50 per paper as fee for re-checking/recounting of marks only. Thereafter no such request will be entertained."
25. The summoning of answer books by the High Court in its Constitutional jurisdiction has been disapproved by this Court in case of Board of D Intermediate and Secondary Education, Lahore v.
26. Saima Azad (1996 SCM R 676) and it has been further observed that marking of numbers on the answer book is a technical job which the High Court is not expected to undertake in exercise of its powers of judicial review under Article 199 of the Constitution. Regarding re-examination/re- evaluating of the answer books through panel of examiners, this Court in case of Tahir Saeed Qureshi v. Board of Intermediate and Secondary Education, Sargodha and others (1996 SCM R 1872) has laid down that the High Court cannot go beyond the scope of the prescribed Rules in.
27. Constitutional jurisdiction. Consequently, we find no merit in this petition which is accordingly dismissed and leave refused.