2006 SC MR 1314 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

These petitions call in question judgment dated May 13, 2005 passed by the Lahore High Court, Multan Bench. Concluding paras. therefrom are reproduced hereinbelow:-- "(11) From the above, it is evident that throughout the academic year, a student remains under constant watch and supervision very minutely and critically qua his/her studies theoretically and practically and his/her achievements so assessed and recorded form a valid basis of internal assessment, to be credited, `to practical score in the final examination'. This being so, in all fairness and in the perspective of safer dispensation of justice, we can rely on the internal assessment qua the present appellants in the subject of E.N.T. (undisputed), for tabulation of average marks in the practicals (under challenge). (12) A perusal of the impugned judgment of the learned Single Judge in Chamber shows that the matter was neither examined, in its true perspective nor the above aspects were taken into consideration, hence, the same suffers from inherent infirmities. Resultantly, the same is set aside by allowing these appeals and the result of the appellants showing them as `fail' in the practical examination of E.N.T., is liable to be re-evaluated and re-assessed on the basis of the marks obtained by them in the internal assessment and the result so tabulated shall be announced within one week from the receipt of copy of this judgment. No order as costs."

2. Precisely stating facts of the case are that respondents invoked the jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, praying that they be declared pass in the subject of E.N.T. of 1st Annual Professional M.B.,B.S. Examination. Learned Single Judge declined to grant relief in view of Regulation No.2 for the examinations, approved by Board of Governors of the University of Health Sciences Lahore, vide judgment, dated 19th April, 2005. For convenience Regulation No.2 is reproduced hereinbelow:-- "(2) The minimum number of marks required to pass this examination for each subject shall be fifty per cent (50%) in written, fifty per cent (50%) of the aggregate in the clinical practical/clinical and fifty per cent (50%) in the clinical examination separately at one and the same time. Candidates who secure eighty per cent (80%) of above marks in any subject shall be declared to have passed `with distinction' in that subject of E.N.T. of the second professional examination as a whole at one and the same time shall be declared to have passed `with distinction' in any subject." It appears that as far as the respondents are concerned, they could not achieve the requisite marks in the subject of E.N.T. and were declared failed. Against the judgment of the learned Single Judge the respondents preferred Intra-Court Appeals Nos.93 of 2005 and 98 of 2005 which were accepted vide impugned judgment, dated 13-5-2005. Hence the instant petitions.

3. Learned counsel for the petitioners contended that in exercise of jurisdiction the High Court could not have changed the system of examination by issuing direction to the petitioners to declare the result of the respondents only on the basis of marks obtained by them in the internal examination of E.N.T., as according to him the learned High Court had to give effect to the rules and regulations or to interpret the same only but the external examination could not be bypassed with the result that the whole exercise of assessment of performance of the candidate through internal and external examination has been rendered as a perfunctory ritual.

4. On the other hand, learned counsel appearing for the respondents contended that as gross illegalities and irregularities were committed by external examiner, therefore, the High Court had no option but to direct taking into consideration the result of internal examination for the purpose of declaring the result of respondents. When questioned as to whether such powers are available to the High Court, learned counsel appearing for respondent Mehreen Zaidi candidly conceded that High Court had no jurisdiction to declare the result of the respondents on the basis of internal examination only. He, however, emphasized that gross illegalities were committed by the examiner, therefore, no option was left with the High Court.

5. After hearing learned counsel for both the sides, we are of the opinion that firstly; the High Court may have not entered into the controversy with regard to the validity of the results unless it was proved that there were gross violation of the rules and regulation and if the High Court had come to such a conclusion then in the interest of justice, instead of directing the petitioners to declare result of the respondents (Mehreen Zaidi and Muhammad Ali Khan) on the basis of internal examination, may have referred the case to the University for the purpose of appointment of other examiner to deal with their cases, if they had any reservation against the examiner. In our opinion, learned High Court does not enjoy jurisdiction to direct declaration of the result on the basis of internal examination only.

6. Thus for the foregoing reasons, impugned judgment is set aside. Cases are remanded to the High Court for reconsideration of the writ petitions and their disposal expeditiously as far as possible within the period of four weeks after receipt thereof, as the dispute involves the career of respondents.

7. The above observations are of tentative nature and the High Court will be free to form its own opinion keeping in view the rules and regulations.

8. Petitions are converted into appeals and allowed. M.H./U-2/SC Case remanded.