2011 PLP (C (PLC(CS))

GHULAM MUSTAFA MUGHAL, C.J.

Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, a direction is sought to the respondents for remarking the paper I, Civil Law. Facts, necessary for the disposal of the instant petition are that the Azad Jammu and Kashmir Public Service Commission conducted examination for recruitment of Civil Judges/Section Officers, Law. Petitioner, herein, competed for appointment as Civil Judge. However, he could not qualify the written test. The petitioner moved an application for rechecking of the papers by depositing the requisite fee. The Public Service Commission managed re-checking in presence of the petitioner. It transpired that only 22 marks have been obtained by the petitioner to the paper of Civil Law. It further transpired that the petitioner, herein obtained zero marks for question No.6. The petitioner filed an application for remarking of the papers, however, the Public Service Commission has declined the request on the pretext that its policy does not authorise remarking of the papers. It is alleged that refusal on the part of Public Service Commission is mala fide, violative of its instructions as well as discriminatory because similar instructions are prevalent in different autonomous bodies i.e. Universities, the Boards of Intermediate and Secondary Education. The Public Service Commission has filed written statement, wherein, it is stated that the petitioner could not qualify paper I (civil law), therefore, has rightly been declared unsuccessful. The Public Service Commission has admitted that under tile Policy, a paper can only be rechecked on the request of a candidate, however, remarking is not permissible. The remarking is only allowed, where some question is left unmarked by the examiner. It is alleged that the Committee constituted by the Public Service Commission has checked the papers in presence of the petitioner and found no fault in marking, hence the allegations, levelled by the petitioner are misconceived. Mr. Sadaqat Hussain Raja, the learned Advocate for the petitioner, referring to annexure ' PF', General Instructions of the Public Service Commission for award of marks, contended that he papers in question have been marked in violation of the instruction issued by the Public Service Commission. He argued that it was enjoined upon the Public Service Commission to get the papers marked from the internal and external examiners but the Public Service Commission has failed to follow its own laid down procedure. He further argued that the petitioner has been awarded zero marks to the answer of question No.6, which is impossible, hence, it was in the interest of justice to refer the paper to some other examiner .for remarking and refusal on the part of the Public Service Commission, is arbitrary and mala fide. In support of his submissions, the learned Advocate has placed reliance on the following cases: (1) Ms. Shakeela v. University of Peshawar through its Vice Chancellor and another, [PLD 2003 Peshawar 69]. (2) University of Punjab through Vice-Chancellor and another v. Mrs. Ruhi Farzana and 3 others, [1996 SCMR 263]. Conversely, Raja Gul Majeed Khan, the learned Advocate-General, submitted that no illegality has been committed by the Public Service Commission nor any departure from rules or policy has been shown by the petitioner. He contended that remarking is not provided in the policy, nor there was such necessity, so far as the present case is concerned. He argued that the Public Service Commission is a statutory body and its performance cannot be interfered until some departure or any violation of law is pointed out. The learned Advocate-General also referred to question No.6 and its answer written by the petitioner and contended that no illegality has been committed by the examiner or the Public Service Commission. We have heard the learned Advocates for the parties and gone through the record of the case. The grievance of the petitioner is that he has wrongly been given 22 marks in paper (1) Civil Law, whereas rest of the papers have been qualified by him by obtaining aggregate marks. He has emphasized for remarking on two grounds. Firstly, in his estimation, proper marks have not been awarded to him by the examiner in all the questions and secondly, for question No.6, the examiner has given him zero marks, which was impossible in view of the answer to the said question written by the petitioner. We have given due consideration to the contentions raised on behalf of the parties and come to the conclusion that no illegality has been committed by the examiner while awarding zero marks for answer to question No.6. Even, the attention of the learned Advocate for the petitioner was drawn by the Court during the course of arguments that how much marks could be granted to the petitioner for the answer to question No.6 but the learned Advocate was unable to differ from the awarded marks. So far as the case-law, referred to and relied upon by the learned Advocate for the petitioner is concerned, we have no quarrel with the proposition laid down in the authorities relied upon by him. We are also unable to accept the plea of the Public Service Commission that remarking cannot be ordered and decision of the Public Service Commission in this regard is final. Although, it could not be laid down that remarking will be allowed as rule in each and every case but when a case of first impression is brought before the Court which shows that a departure from law, practice and instructions has been made out without genuine reasons or when the illegality alleged is so glaring and apparent that cannot be allowed on the record. This Court does not become powerless in such case. The same view has been approved in the cases referred to and relied upon by the learned Advocate for the petitioner. In the first case, referred to and relied upon. by the learned Advocate for the petitioner, a division bench of the Peshawar High Court observed that although rules do not permit rechecking/remarking of papers but in genuine cases, the High Court cannot fold up its hands sealing the fate of an, aggrieved student leaving him at the mercy of the people who indulge in reckless dispensation of duties. The relevant observation of the division bench is recorded in paras 7 and 8, page 72 of the report which reads as under: (7) The objection of the learned counsel for the respondents that in such-like matters relevant rules of the University does not permit the rechecking and re-evaluation of the marks, therefore, this Court cannot grant the prayed relief, this plea, if not misconceived, held is also not holy well conceived one and the said bar cannot be taken as a stumbling block nor it can operate an absolute one in the way of this Court when seized with. such a matter in its writ jurisdiction nor the respondents can be permitted to clad itself with said barring rule after committing wrong and causing injustice to a student by putting her/his academic career in jeopardy. Under the University Act itself as the preamble explains the basis and fundamental obligations of the respondents is to impart education and not impede the same, therefore, the present one is one of those very rare cases, wherein despite of such barring provision relief as prayed for cannot be refused otherwise, this Court will endorse an action which is in disregard of law as well as principle of justice, fair play and rules of propriety and too at the cost of fundamental rights of a citizen which course we would not permit at any cost, whatsoever because the centuries old principle which is old as hills are "that late justice prevails though the heaven would fall" Therefore, such objection is absolutely unsustainable in the facts and circumstances of the instant case. (8) In view of the uncaring and lethargic attitude of the concerned staff of the academic institutions charged with a noble task of giving to a student what is his or her due, therefore, with each and every passing day, the Court's duty is becoming onerous and obliging one, therefore, in exceptional cases like the instant one the bar contained in the relevant rules shall not thwart in any manner the grant of a relief to a genuinely aggrieved citizen whose case is otherwise established for grant of such relief. However, required degree of care and caution as well as restrain must be exercised so that excepting very rare and genuine cases frequent interference is to be avoided by the Court. However, the Court is required to chisel out the apparent bluntness of the authorities which they have shown in the present case for insuring and securing fair play and justice, The same view was reiterated and followed by a division bench of Karachi High Court in a case reported as 2010 MLD

85. In this case, the learned division bench placed reliance on a case titled Abdul Hakim Hashi v. Federal Public Service Commission through its Chairman and 8 others, 2002 SCMR

504. This authority also provides guidelines to the Public Service Commission for remarking and rechecking of the papers, when an. application is made in this behalf. In view of what has been stated above, we find no merits in this petition therefore; the same is hereby dismissed with no order as to costs. H.B.T./5/H.C.(AJ&K). Petition dismissed.