1999 PLP 2060 (MLD)

7. As would be seen that it is not a case of routine re-evaluation of an answer book having been attempted by the examinee for the appreciation thereof would differ from examiner to examiner. On the contrary, it is a case of marking the objective question which is in the nature of mathematical calculation the answer could either be right or wrong, therefore, the marks are to be allocated or not to be allocated at all. There is no mid-way hence the said question is to be treated apart. The case of the petitioner is that she had attempted 17 parts of the said question but was awarded zero marks therefore, her paper should be rechecked. This request of the petitioner was accepted by the rechecking committee of the Board and the omission on the part of the examiner having been detected, the paper was sent to the same sub-examiner for correction (underlining is mine). The said examiner having seen the omission in not marking the answer to objective question No. 1 of the said paper refused to rectify the same on the ground that in his estimation, the question appears to have been attempted later on and recommended that it was' a case of unfair means. It was too late in the day to suggest even that it was a case of unfair means but it seems that the opinion was also entertained by the Board who in turn obtained report from the Handwriting Expert that answer to the question was attempted at a later point of time. The omission on the part of the examiner was also got rechecked by sending the paper to the second examiner at Lahore who having rechecked the answer of the question had reported that 10 out of the attempted parts are correct. The question is as to whether this effort should be treated as re-evaluation or rechecking. Then again the question would be should one shut his eyes from the reality and not allow the marks to the examinee simply for the reason that there does not exist any provision. The rule of equity is manifestly attracted in the circumstances and the power of judicial review is there to correct not only the mistake but also the perversity which is floating on the record as also undoing the wrong meted out to the petitioner. The only question would be as to whether the requisite procedure has been adopted and factual foundation has been established as per the rule laid down in the case of Mst. Salma Afroze. The facts noted above would show that the said examiner had the opportunity or at least provided one to explain his position vis-a-vis the question remaining unmarked who in turn failed to give any reason for not marking the question except the one that the answer had been attempted at a later point of time, therefore, the objection as to requisite procedure and the establishment of factual foundation has been squarely met. Need it be added here that the sub-examiner had no authority under the law to even cast doubts that the p answer to the objective question had been attempted at a later point of time, resultantly the answer to the objective question No. l of paper Physics could not be awarded zero marks.

8. The reliance of the learned counsel for the respondent on the plethora of law noted supra is misplaced in the case of Saima Zahid. It was observed: -- "It was not proper for the High Court directing examiners of specified papers to appear in Court on the fixed date of hearing alongwith answer books of all other examiners marked by them because marking of numbers on answer books being technical job performed by experts, High Court was not expected to take the same in the exercise of judicial review under Article 199 of the Constitution of Islamic Republic of Pakistan for the jurisdiction of the High Court under Article 199 of the Constitution was principally meant for correcting jurisdictional errors in the orders or proceedings of the Tribunal and executive authorities. " The rule of law laid down in this case was in relation to a situation where the whole lot of papers, as examined by different examiners, had been summoned by the High Court. The question involved therein was of re-evaluation of routine answer book and not that of checking of answer to an objective question. Again, the total lot of papers were summoned which was disapproved. In the case of Tahir Saeed Qureshi, the papers of the examinee were rechecked and re evaluated who wanted the same to be further rechecked and re-evaluated by a panel of examiners which was refused on the ground that rechecking having been once done, the procedure could not be undertaken all over again for if such an effort is allowed to continue, the process might never come to an end. In the instant case, neither the sub-examiner, nor the head-examiner had denied that 10 out of 17 answers of the objective questions have been found to be correct, therefore, the rule laid down in this judgment also would not be applicable in the facts and circumstances of the present case. In the other cases i.e. Munaza Khalil and Fahad Latif, the question involved was that of re-evaluation of the routine papers and not that of rechecking of answer to objective questions to see as to whether the same has been properly marked or not. As already observed, the answer to the objective question is to be treated apart and it has been so treated by the rechecking committee of the Board itself. ,

9. Rule 11 of Chapter 5 of the Calendar of Board of Intermediate and Secondary Education, Gujranwala, is further relied. It reads as follows: --

11. The Chairman or any officer authorised by him may on receipt of an application on the prescribed form within 30 days of the declaration of the result and accompanied by a fee of Rs.100 per paper, satisfy himself that-- (i) there is no mistake of the grand total on the title cover of the answer book; (ii) the total of various parts of a question has been correctly made at the end of question; (iii) all total have been correctly brought forward on the title page of the answer book; (iv) no portion of any- answer book has been left unmarked; ' (v) the answer book or any part thereof has not been replaced; (vi) the candidate or anybody on his/her behalf has no right to see or examine the answer books for any purpose. Note: Last date for receipt Within 30 days from the of application form in date of declaration of the the office of the result. Application Controller of received after the Examinations. prescribed time limit shall not be entertained under any circumstances. Sub-clause (iv) of the above said rule would show that if a portion of any answer book had been left unmarked then in that eventuality, the evaluation of that portion shall be done which would be in the nature of re-checking although not re-evaluation. It is conceded at the bar that as per rule noted, it is the duty of the Chairman or any officer authorised by him in this behalf to undertake such an effort on the receipt of the application by the examinee. Learned counsel for the petitioner on the other hand referred to a decision of the Board of Intermediate and Secondary Education, Lahore, which finds mention in the case of Chairman, Board of Intermediate and Secondary Education, Lahore and another v. Ali Mir (1984 SCMR 433). I am tempted to quote the verbatum: -- "There is no provision in this rule for re-evaluating an answer book. It appears that the Chairman had on an earlier occasion taken some action in relation to marking. by a sub-examiner of answer books of Spring Examination, 1976 involving loss of answer books and marking in more than one handwriting which action when placed before the Board had been approved and by a resolution it had desired that 'some thinking must be done about rectifying such injustices in individual cases'. The matter was accordingly referred to a sub-committee and on the receipt of its report a resolution was passed on 31-8-1981 to the effect that where zero mark had been given by the examiner on a correct solution, the answer book could be referred to a Review Committee and if that Committee came to the view that injustice had been done to the candidate, the matter would be placed by the Chairman before the Board for its decision. It is obvious that the respondent's case not being that he had been awarded zero mark against a correct solution in any question he could not invoke that resolution, dated 31-8-1981. No other rule was cited conferring any right on a candidate to compel the Board to refer his answer book for re-evaluation. " The fact remains that in the case of an answer to an objective question, if the answer is crossed altogether and the examinee had awarded zero mark, then in that case, will the Board be allowed to maintain that since no rule as to re evaluation is available, therefore, the answer paper cannot be rechecked. In the E instant case, answer to question No.1 contains 10 correct parts which need to be marked and had not been so marked. The Court must not turn its back on the examinee for these marks may make or mar her career, therefore, I would grant the mandamus that the petitioner's answer to objection question No. l of paper Physics be rechecked and properly marked.

10. As for the making of case of unfair means against the petitioner is concerned, suffice it to say that this appears to be the result of omission on the part of the sub-examiner to award marks to the answer to the objective question No. l of paper Physics who instead of -admitting the omission and supplying the lapse tried to find reason, therefore, and thought it easy to level allegations against the examinee which is not parental behaviour.

11. In the circumstances, relying on the rule of law laid down in the case of Mst. Salma Feroze noted (supra), I accept this petition and grant the mandamus as aforesaid, resultantly the Board is directed to act in accordance with the award r given by Dr. Muhammad Rafique, Associate Professor of Physics, Government College, Lahore. There shall, however, be no order as to costs.

12. The original paper of the petitioner alongwith photostat copy of the report of Handwriting Expert as also the award given by Dr. Muhammad Rafique, Associate Professor of Physics, Government College, Lahore, in relation to first question (objective) of the answer book of Physics paper of the petitioner, shall immediately be sent back to the Board of Intermediate and Secondary Education, Gujranwala. " H.B.T./A-11/L Petition accepted.