2006 PLP 1776 (MLD)

MUHAMMAD JEHANGIR ARSHAD, J.

This I.C.A. is directed against the judgment passed by learned Single Judge, in Chamber, of this Court on 22-4-2003 dismissing appellant's Writ Petition No.9746 of 2000 in the following facts and circumstances: The appellant appeared in B.A. (Annual) Examination 1999 from respondent-University and passed the same by securing 455 marks out of total

800. According to the Result Card the appellant was awarded 79 marks out of 200 in the subject of English language. As the appellant was not satisfied with the marks he obtained in the said subject, he therefore, moved the respondent-University for re-evaluation of both papers in the said subject of English. Later on the appellant was informed by the University authorities that his marks in English Paper-B were revised and ten marks were added to his credit. Still dissatisfied, the appellant through his father approached the Controller of Examination respondent No.3 and requested that his both the papers in the said subject be re-evaluated and when pressed hard his father was allowed to go through both the answer books of the said paper but his prayer for re-evaluation was not met with and finally the appellant moved a proper written application to the Vice-Chancellor Bahauddin Zakariya University with the request that his both the papers in the said subject be re-evaluated as permissible under Regulation 23 of the University Statute. His application was however dismissed and against dismissal of said application Writ Petition No.9746 of 2000 filed by the appellant was also dismissed by a learned Single Judge, in Chamber, of this Court vide judgment, dated 22-4-2003. This judgment has now been challenged through the instant I.C.A.

2. It has been earnestly argued by learned counsel for the appellant that keeping in view the brilliant past academic career of the appellant and also for the reason that the respondent authorities had revised Paper-B by adding further ten marks in favour of the appellant, therefore, it had become a fit case for re-evaluation within the four corners of Regulation 23 reproduced by learned Single Judge in para.6 of the impugned judgment. It is further argued that although the appellant after passing the said examination also obtained M.A. degree in International Relations from Bahauddin Zakariya University and is also posted in the said University as a, Teacher yet due to low average of marks in the said paper of B.A. he has not only failed to obtain scholarship but the same is also operating as an impediment against him in his further studies on merit, therefore, even on compassionate grounds his request should have been acceded to and the learned Single Judge wrongly dismissed the writ petition. The learned counsel in support of his arguments has also placed reliance on an unreported judgment of this Court passed in Writ Petition No.4456 of 2001, dated 5-7-2001 by which the learned Single Judge of this Court in similar circumstances has acceded to the request of the writ petitioner and ordered remarking of the paper, as prayed for.

3. We have considered the abovementioned arguments of learned counsel for the appellant, have also gone through the judgment relied upon and the case-law on the subject.

4. At the very outset, we have no hesitation in holding that powers of the Vice-Chancellor of the University to get a particular paper book or paper books re-examined are limited i.e. when the case is covered by exceptional circumstances and there is strong ground to believe that earlier the answer book/books were not evaluated justly. Despite our repeated questions, learned counsel for the appellant failed to pinpoint the exceptional strong circumstances so as to compel the Vice-Chancellor to accede to his request, except to answer that the matter involves future career of the appellant and this was a sufficient ground for exercising writ jurisdiction. We are afraid that the answer so given by the learned counsel is sufficient to hold the judgment of learned Single Judge as illegal or without jurisdiction. We have gone through the contents of the writ petition and have found no disclosure of criminality, irresponsibility, fraud or abuse of regulation committed by the Examiner in marking the disputed paper. As admitted in the writ petition the papers were shown to the appellant's father and there is no affidavit on behalf of appellant's father that in the said papers either any question was left unmarked or that the marks given to the appellant were not properly calculated or there was any discrepancy while totalling the marks recorded on the papers. It has been held by the Hon'ble Supreme Court of Pakistan in the case "Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others" (PLD 1992 SC 263) that unless there is allegation of criminality, irresponsibility, fraud and abuse of regulations in marking the papers, with full particulars by complete disclosure ultimately rendering the examiner as disqualified forever from marking the paper books, re-evaluation cannot be ordered just at the mere desire of the candidate or on the basis of vague and undisclosed particulars requiring re-examination of the paper. Again in the case of "Muhammad Jaffer Hussain v. Chairman, Board of Intermediate and Secondary Education, D.G. Khan and others" (1999 SCMR 2405) the Hon'ble Supreme Court refused the prayer for marking by holding that "marking of paper book was a job to be performed by expert in subject concerned and High Court in exercise of its constitutional jurisdiction was not required to evaluate papers in any other manner." Similarly in the case "Board of Intermediate and Secondary Education Lahore v. Saima Azad" (1996 SCMR 676), where the High Court had acceded to the request of the candidate for re-evaluation of the papers, the Hon'ble Supreme Court held "Marking of numbers on answer books being technical job performed by experts, High Court was not expected to undertake the same in exercise of its powers of judicial review under Article 199 of Constitution. Jurisdiction of High Court under Article 199 of the Constitution was principally meant for correcting jurisdiction error in the order and proceedings of Tribunal and Executive authorities. Jurisdiction of High Court under Article 199 of the Constitution could not be invoked for obtaining decision on merits which functionaries alone were entitled to take under law." In the same judgment, the Hon'ble Supreme Court further held as under: "We are unable to accept the above contentions. 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 litigation 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 firstly satisfy that the issue brought by her before the Court is justifiable under Article 199 of the Constitution." So far as unreported judgment of this Court relied upon by the learned counsel for the appellant is concerned, the same is distinguishable and cannot be used as binding authority on Division Bench.

5. Before parting with this judgment we, however, also hold that in view of Regulation 23 of the University Statute the Vice-Chancellor of the Bahauddin Zakariya University does possess jurisdiction to order re-evaluation of papers but only when he is satisfied that exceptional circumstances exist for ordering so and satisfaction of the Vice-Chancellor is his own exclusive discretion which cannot be interfered with by this Court in its constitutional jurisdiction, in the light of law declared by the Hon'ble Supreme Court of Pakistan in the cited judgment. The upshot of above discussion is that this appeal has no merit and is dismissed in limine. S.A.K./M-421/L Appeal dismissed.