2000 PLP 145 (MLD)

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 2: 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. We have heard Mr. Muhammad Anwar Channa, the learned counsel for' the petitioner (Miss. 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 SCI 425), Board of Intermediate and Secondary Education, Lahore v. Saima Azad (1996 SCMR 676) and Shahzad Munawar Butt v. Vice‑Chancellor University of the Punjab and 2 others (1990 CLC 316). 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. 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. 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). 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 ii) 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. l 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 SCMR 516). 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. 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. 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. l 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. We are also in agreement with the arguments of the learned counsel for the respondents Nos. l 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.C 965) "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 processual 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) "So far as the audi alteram 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 alteram 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.C 1029) "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) "There is no gainsaying that the rule embodied, in the maxim 'audi alteram 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 MLD 2874) "It goes without saying that the aforesaid maxim 'audi alteram 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 tight vested in him." 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 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. In the case of Board of Intermediate and Secondary Education Lahore v. Saima Azad (1996 SCMR 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. " "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 sacrificed on the altar of expediency. 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 justicable under Article 199 of the Constitution." Also see: Maharashtra State Board v. Paritosh (AIR 1985 SC 1543). 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 assessment and marking in the answer books, this Court will be reluctant and extra cautious in extending its writ jurisdiction. Besides this, in several cases the Hon'ble Supreme Court of Pakistan C 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 SCMR 516), (ii) Export Promotion Bureau and others v. Qaiser Shafiullah, (1994 SCMR 859), , (iii) Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351). For the preceding reasons these, petitions were found without substance and were dismissed. H.B.T./R/88/K Petitions dismissed.