1998 PLP 697 (SCMR)

SAJJAD ALI SHAH, C.J.

By these petitions, leave is sought against judgment dated 16-11-1994 whereby Peshawar High Court has allowed to writ petitions filed by respondents. 1 to 8 in C.P.L.A. No. 88 of 1995 and respondent No.1 in C. P.L.A. No. 89 of 1995. Respondents/writ petitioners approached the High Court with the grievance that they appeared in the annual examination of final professional M.B.,B.S. held in 1993 but were declared failed in the subject of Ophthalmology, in spite of the fact that the paper of that subject was unconventional and the questions were difficult and above the standard of undergraduates. In that connection protest was lodged by the students and assurance was given by the concerned Professor that the marking would be soft. The High Court, after consideration of assertions made in the memorandum of writ petitions and comments filed by the University Authorities and documents filed by them, passed first order dated 21-11-1993 directing functionaries of the University to produce answer books on the subject mentioned above of writ petitioners and non-contensting respondents totalling

22. This order was challenged and this Court granted leave and converted the petitions into appeals and allowed the same vide judgment dated 1-2-1994. It was held by this Court firstly, that production of answer sheets could not be of any assistance or relevance for deciding the controversy by the High Court. Secondly, the contention of the contesting writ petitioners that they had done better than the non-constesting respondents in ophthalmology paper and yet they were declared failed and non-contesting respondents were declared passed was speculative in nature and could be determined by the High Court under Article 199 of the Constitution guided by the scope of rules contained in the Calendar of University of Peshawar (1991-92) relating to rechecking of answer books under conventional system of examination. In compliance the High Court has examined Rules 21 to 26 of the Rules mentioned above and has concluded that Rule 23 is inconsistent with Rule

25. Rule 23 provides that only those candidates would be eligible for rechecking who fail in the subject by not more than 5 marks. Rule 25 lays down the procedure for rechecking specifying requirements including item No. iv to the effect that the marks allotted to the candidate are in conformity with the marking by the examiner in other cases. Learned counsel for the petitioners before us has contended that the High Court has erred in suspending the operation of Rule 23 and allowing rechecking under Rules 24 and 25 papers of the writ petitioners in spite of the fact that they had failed in the subject by more than 5 marks. In support of the proposition reliance is placed on the judgment in the case of Board of Intermediate and Secondary Education, Lahore and another v. Mst. Salina Afroze and 2 others (PLD 1992 SC 263). Another contention raised is that it was not within the power and jurisdiction of the High Court to suspend operation of Rule 23 and direct that the answer sheets be rechecked by neutral examiner. Our attention was also drawn to the representation of writ petitioners addressed to the Vice-Chancellor requesting for grace marks indicating the fact that mode of checking the paper was not challenged but reasons were assigned for securing low marks. We grant leave to examine whether the High Court in the impugned ,judgment has correctly construed Rules 21 to 25 and whether finding of the High Court is correct that Rule 23 is inconsistent with letter and spirit of Rule 25 in the light of contentions raised above. Operation of the impugned judgment is suspended. Since the question involved is of urgent nature and relates to the career of medical students, we direct the office to prepare the paper books so that the appeals may be fixed for hearing immediately on reopening of this Court after vacation this year. A.A./U-4/S Leave granted