2006 PLP 1920 (CLC)

SYED SHABBAR RAZA RIZVI, J.

In this Intra-Court Appeal, order of the learned Single Bench rendered in Writ Petition No.12670 of 1998, dated 14-10-1998 has been called in question. In the said Writ Petition No.12670 of 1998, grievance of the appellant was reduction of her numbers in middle standard examination. According to the original result announced on 29-10-1997, the appellant had secured 760 marks, however, her marks were reduced from 760 to

747. The above re-assessment placed the appellant at third position instead of first as she was originally declared. In the above circumstances, Writ Petition No.12670 of 1998 was filed which was dismissed by the learned Single Bench observing that no paper/question was re-assessed instead mistake in calculation was corrected.

2. Dissatisfied with the above order of the learned Single Bench, the learned counsel for the appellant submits that appellant and respondents Nos.4 and 5 had appeared in the middle examination of 1998, the final result was declared on 20-4-1998. The appellant was informed that she had secured 760 marks and stood first in the Faisalabad Division; respondent No.4 by securing 754 marks stood second; and respondent No.5 by securing 752 marks stood third in the whole Division. However, subsequently, the appellant was declared at third position with 747 marks; respondent No.4 was shown first followed by respondent No.5 second.

3. The appellant approached the respondent No.3 who revealed that the re-checking of the papers was carried out which resulted into decrease of appellant's marks, detailed above.

4. According to the learned counsel for the appellant, the respondent No.3 wrongly justified his action on basis of Rule No.13 which was erroneously accepted by the learned Single Bench. In this regard, the learned counsel referred to Rule 7 which does not allow re-assessment; before proceeding further, it would be apt to examine Rule 7 and Rule 13:-- Rule

7. Re-assessment of the scripts

Re-assessment of the scripts shall not be allowed under any circumstances. Re-checking will, however, be allowed on payment of a prescribed fee if a request is received within 20 days of the declaration of the results. Rule

13. Rectification of mistakes.

The Directors of Education shall have the power to rectify any mistake which may come to light at any time after the examination or the declaration of the results on account of any clerical mistake or wrong interpretation of these rules.

5. Under Rule 7, re-assessment of the script is not allowed in any circumstances, however, re-checking is allowed subject to payment of a prescribed fee if a request is received within 20 days of the declaration of the results. At this point of time, one has to be very sure about meaning of re-assessment and re-checking. Under the Black's Law Dictionary (6th Edition page 1266), re-assessment means, "re-estimating". According to P. Ramanatha Aiyer. The Law Lexicon (re-print 2004, page 1621), "re-assessment" is equivalent to re-evaluation. According to the Oxford Advanced Learners' Dictionary (7th Edition, page 1259) "re-assessment" means to think about something to decide if you need to change your opinion of it, to reappraise. According to the Oxford Dictionary as mentioned above check/re-check means to examine something to see if it is correct. According to the Black's Law Dictionary, to verify or audit, as to examine the books and records of another or a business for accuracy and proper accounting practices. The above meanings and connotation given in the dictionaries indicate that re-assessment means re-evaluation or changing the marking of the scripts, whereas, re-checking means only to see whether the marks given by the Examiner are correctly counted or not. For the same reason, Rule 7 is absolutely clear that re-assessment is not allowed in any circumstances. However, re-checking will be allowed if the conditions given in Rule 7 are fulfilled. As far as Rule 13 is concerned, it only allows rectification of any mistake on account of any clerical mistake or wrong interpretation of any rule. The issue raised before this Court does not relate to any mistake on account of any clerical mistake or wrong interpretation of any rule instead it relates to result of the appellant, respondent No.4 and respondent No.5. Moreover, power under Rule 13 to rectify any mistake is given to the Directors of Education and not to respondent No.3 who happens to be the Assistant Director, Secondary Education, Faisalabad Division, Faisalabad. The Rule does not show that the Assistant Director shall be read as Director or vice versa. Moreover, according to the Oxford Dictionary (mentioned above), "to rectify" means to right something that is wrong or to correct something. For the above reasons, in our opinion Rule 13 is not applicable in the facts and circumstances of the present controversy.

6. The impugned order or the letter through which the appellant was informed about change in her result, does not show that the decrease in numbers of the appellant was a result of re-assessment or re-checking. Through the impugned letter the appellant was just informed or the result was notified without giving any reason, notice, or affording any opportunity to the appellant. It is important to remind ourselves that securing first position in any examination is an achievement for life. One always cherishes this kind of honour throughout life, it is a great feeling, indeed. Therefore, once somebody is notified or declared having clinched first position cannot be deprived of same unless reasons/hearing or at least a notice is given. This also conforms with the principle of natural justice. However, before we conclude our discussion or reach to any conclusion, it would be expedient and desirable to seek guidance from some previous judgments of our superior Courts on the subject.

7. In Abdus Saboor v. Karachi University etc. the result of the appellant was withheld on a complaint of an examiner. As a result of complaint, the appellant was debarred from appearing at any examination of the University and from admission to any class in the University or affiliated collages for a period of two years. The appellant made representation but he was not given any reply by the University. A writ petition filed by the appellant was also dismissed by the learned High Court of West Pakistan, on a report from the Unfair Means Committee of the University. The report of the Committee also highlighted that there was no provision in rules to provide for a notice before taking the punitive action. The Honourable Supreme Court of Pakistan noted that at no stage of the proceedings of the University, the appellant was called upon to show cause against the action proposed to be taken against him. He was never furnished any details of the precise allegations against him. The Honourable Supreme Court further noted that the University regarded opinion of the Examiner as conclusive and passed impugned order which was against principle of natural justice. The Honourable Supreme Court finally held as below: "No one can be condemned unheard, is one of the settled principles of law and such a principle will be read into the relevant law, unless its application is excluded by express words. The duty is cast on every Administrative Tribunal to act fairly and justly and with due regard to the principles of natural justice, unless specifically exempted from such a limitation. Mere omission from the relevant law of a provision for notice, would not affect this position." (Abdus Saboor Khan v. Karachi University and others PLD 1966 SC 536). In another case wherein results of the appellants were cancelled for using unfair means, their representation to the Vice-Chancellor was also dismissed, a writ petition filed in the High Court was dismissed on basis of the report called from the University. The Honourable Supreme Court concluded that the Unfair Means Committee and the, University acted in total disregard of the essentials of Natural Justice. (Murlidhar v. University of Karachi PLD 1966 SC 841). In another case of University of the Punjab, marks obtained by the petitioner in examination were subsequently decreased by issuance of Notification in supersession of the previous notification under which petitioner's marks were first declared. The above mentioned reduction in marks of the petitioner was made without giving any show-cause notice and without furnishing her any hearing. The impugned order was declared illegal being violative of principles of natural justice. (Rabia Hafeez v. University of the Punjab and others 1991 CLC Note 305, Lahore).

8. The above case-law leave us in no doubt that reduction in appellant's marks, earlier notified, could not have been effected, in disregard of principle of nature justice.

9. We also hold that the change in the result of the appellant which caused loss to her was result of re-assessment instead of re-checking of papers of the appellant, respondent No.4 and respondent No.5 which is expressly prohibited under rule 7 as noted above. The said re-assessment was also made in total violation of principles of Natural Justice as appellant was not provided any opportunity of hearing, etc. before issuance of impugned letter from respondent No.3. The respondents appearing before us failed to show any error in calculation of marks. Similarly, Annexure "A" and Annexure "A-1" also do not show that marks of the petitioner were decreased as a result of re-calculation or re-checking of marks of the appellant. To be on safe side, para.2 of the order of the learned Single Bench dated 14-10-1998 is reproduced as under:-- "Respondent No.3 has entered appearance along with the record. Learned A.A.-G. has contended that in fact there was no re-assessment. What has happened is that error had occurred in the calculation of marks which has been corrected and according to him, this is justified under rule 13 of the same rules." The record was produced before us, respondent No.3 did not mention error in the calculation of the marks. Moreover, as we noted above, Rule 13 is not meant for correction in calculation of marks or re-checking of marks, it is meant for rectification of a mistake which may come to light at any time after examination or the declaration of the results, on account of any clerical mistake or wrong interpretation of these rules. The Rules 13 empowers Directors of Education to rectify any mistake in the above circumstances only. The rule 13 does not empower any Assistant Director to exercise powers vested in Rule 13 and that too for re-checking of marks or removing errors in the calculation of the marks. The appellant who had earned a great honour to be remembered and cherished for rest of her life by winning 1st position in the Board, was robbed of this distinction arbitrarily 'and in disregard of rule

7. The impugned order was also passed in total contravention as well as disregard of principle of Natural Justice. We have also noted Annexure "A" i.e. Black List is full of cuttings without mentioning any reason, Annexure "A1" is a copy of a Press Release from the office of Controller Examination Schools Secondary, Faisalabad, which is not dated.

10. Consequent to above discussion and reasons, this Intra-Court Appeal is allowed, the order of the learned Single Bench of this Court is set aside. Similarly, the relief claimed in the writ petition (Writ Petition No.12670 of 1998) is granted and re-assessment of the papers of the appellant and respondents Nos.4 and 5 is declared without lawful authority and of no legal effect on rights of the appellant. The act of respondent No.3 is also declared in contravention of the Rule

7. The result of the appellant which was declared before the impugned declaration is restored, consequently, reduction of appellant's numbers from 760 to 747 is also declared having been done without lawful authority. However, since several years have passed, the respondents Nos.4 and 5 might have gained some benefits on the basis of impugned decision of respondent No.3/Board, this decision will not affect adversely such benefits gained by respondents Nos.4 and 5 till to date; this observation is valid only from the period commencing from 20-4-1998 till to date. S.M.B./S-152/L Appeal allowe