2000 PLP 1735 (YLR)

This Constitutional petition has been filed to challenge reduction of the petitioner's marks in her English Paper 'B' from 68 to 36 by the Head Examiner/respondent No.3.

2. Briefly stated the facts giving rise to this petition are that the petitioner appeared as an external candidate in the B.A. First Annual Examination, 1997, conducted by the Islamia University, Bahawalpur/respondent No. 1, under Roll No.2347 in English Papers 'A' and 'B'. She had already passed the examination in the other subjects in the Second Annual Examination, 1996. The petitioner secured 21 marks in English Paper 'A' and 36 marks in English Paper 'B'. She felt that the marking was low and applied for rechecking of both the papers. In the process of rechecking the petitioner was shown the answer book of English Paper 'B', whereupon she discovered that originally she was awarded 68 marks by the Sub‑Examiner, which were reduced by the Head Examiner, to 36 marks.

3. The petitioner came up for hearing on 19‑11‑1997 when the learned counsel for the respondent University appeared on Court call and was directed to submit a report after obtaining instructions. Accordingly he submitted the report stating therein that the Head‑Examiner had detected 6 cases of inflated marks, who noted the said fact and returned the papers to the Sub‑Examiner, who agreed with the Head‑Examiner and reduced the excess marks. The petitioner's learned counsel stressed that the reduction of marks was originally done by the Head‑Examiner himself although he was not competent to do so. Controverting this position, the learned counsel for the respondent University urged that the marks were reduced by the Sub -Examiner. In view of the conflicting stands taken by the parties the Head‑Examiner respondent No.3 was directed to appear in the Court in person. He appeared before this Court on 27‑5‑1998 and after seeing the relevant answer book, candidly stated that he had noticed over‑marking and reduced the marks to 36 and then referred the case to the Sub‑Examiner who agreed with the reduction of marks to 36 which were shown in the petitioner's final award qua English Paper ' B'.

4. The petitioner's learned counsel urged that the petitioner was rightly awarded 68 marks in English Paper 'B'; that under Regulation No.12 contained in Chapter V of the Calendar of Islamia University, Bahawalpur it is specifically provided that in no case shall the Head‑Examiner himself increase or diminish the marks assigned to any paper by an Examiner; that in case of a difference between the Head Examiner and the Sub‑Examiner the decision of the Head -Examiner shall prevail. He urged that the Head Examiner travelled beyond his authority by reducing the petitioner's marks from 68 to 36; that the Islamia University, Bahawalpur had adopted the Statutes and Regulations etc. of the Punjab University relating to Conduct of Examination on 24‑5‑1977; that under the Statutes of Punjab University the Head Examiner can merely moderate the award of a candidate up to 5 marks; that in the present case the petitioner's award was reduced from 68 to 36 marks illegally by the Head‑Examiner. On the other hand, learned counsel for the University submits that the Head‑Examiner could not finally increase or decrease the marks but can tentatively mark the papers and send it to the Sub‑Examiner for his views. That this procedure was followed in the present case in which the Sub‑Examiner readily agreed with the reduction of marks from 68 to 36; that the award list accordingly contained 36 marks qua the petitioner's English Paper 'B'; that there is no illegality on the part of the examiners to justify interference by this Court in exercise of its Constitutional jurisdiction.

5. The general Rules and Regulations regarding Conduct of Examinations are contained in Part IV of the Calendar of the Islamia University, Bahawalpur, 1981‑82 (Vol. I), Chapter 5 contains the Regulations regarding appointment and duties of Examiners. The relevant Regulation No.12 is reproduced below for ready reference: ‑‑ "In no case shall the Head Examiner himself increase or diminish the marks assigned to any paper by an Examiner. In case of a difference arising between a Head‑Examiner and one of the Subordinate Examiners, the decision of the Head Examiner shall prevail. " The above-quoted Regulation in the first part embodies a mandatory provision debarring the Head‑Examiner from increasing or decreasing the marks assigned to any paper by a Sub‑Examiner during the course of checking 10 % (after amendment 20 %) of the answer books. There is no room for the Head Examiner to make even tentative marking and send the paper back to the Sub‑Examiner thereafter. The so‑called tentative marking becomes final marking because under the later part of the Regulation it is provided that in case of a difference between the Head- Examiner and the Sub‑Examiner, the decision of the Head‑Examiner is to prevail. The only reasonable construction of the Regulation is that the Head‑Examiner on checking the prescribed percentage of answer books can arrive at a decision whether there is over-marking or under‑marking qua each answer and can send the answer book back to the Sub‑Examiner for his decision/marking for increasing or decreasing the marks suitably. By virtue of the latter part of the Regulation, in case of a difference of opinion as to whether the answer book requires increase or decrease of marks, the decision of the Head Examiner will prevail. Therefore, the Sub‑ Examiner will be bound to re‑mark the paper/answer book and reduce or increase the marks suitably.

6. In the present case the Head -Examiner had himself marked the answer book and reduced the petitioner's marks in English Paper 'B' from 68 to

36. Then he forwarded it to the Sub‑Examiner who agreed with the marking done by the Head -Examiner. Obviously the Sub‑Examiner was influenced by the marking done by the Head -Examiner and agreed to reduction of marks as he was conscious that his difference of opinion would be futile in view of the latter part of the Regulation. For that reason, he did not independently consider the reasonableness of the award of marks qua each answer.

7. It was also urged by the petitioner's learned counsel that the Islamia University, Bahwalpur had adopted the Statutes/Regulation and rules etc. relating to various examinations as provided in the Punjab University Calendar, Volumes I and 11, 1968‑

69. In this connection the learned Legal Advisor for the respondent University has placed on record the minutes of the meeting of the Chancellor's Committee held' on 24‑5‑1977 in which the recommendation by the Finance and Planning Committee made on 23‑5‑1977 regarding adoption of Statutes and Regulations etc. of the Punjab University relating to various examinations was approved. The Committee had approved item 8(d), a copy of which has been placed on the record as Annexure 'D'. Item 8(d) contained three proposals in para.3. out of which proposal No.(i) is relevant and reproduced below for ready reference:‑‑ "The same Statutes, Regulations and Rules etc., relating to various examinations as provided in the Punjab , University Calendar, Volumes I and II (1968‑69) subject to amendments made therein from time to time be adopted with the retrospective effect till our own are framed. " A bare reading of this proposal shows that the adoption was valid till such time the Islamia University had not framed its own Statutes, Regulations and Rules etc. It appears that the University framed its own Rules and Regulations regarding Conduct of Examination etc., which are embodied in para. 4 of the Calendar of the Islamia University, Bahawalpur, 1981‑1982. Therefore, the adoption of the Rules and Regulations of the Punjab University has ceased to have any effect in respect of the matters specifically provided under the Calendar of the respondent University, and all questions relating to the Conduct of Examinations etc. have to be decided in accordance with the express provisions of the Regulation (contained in Para.4, Chapters 1 to 8 of the Calendar of the Islamia University Bahawalpur). As regards the matters of which no express provision exists in the Statutes. Regulations and Rules of the respondent University, it may still follow the provisions contained in the Calendar of the Punjab University. Since an express provision exists in the Calendar of the respondent University regarding increase or decrease of marks (Regulation No.12 quoted above) I am not inclined to give effect to Regulation No.4 relating to functions of paper‑setters and Head‑Examiners contained in the Calendar of the Punjab University whereby the power of the Head‑Examiner had been limited to moderate the award of marks to a candidate up to 5 marks only.

8. For the foregoing discussion, the petition is accepted with costs of Rs. 10,000, the impugned action of the Head‑Examiner and the Sub‑Examiner respondents Nos.3 and 4 respectively in re‑marking the petitioner's English Paper 'B' is declared to be without lawful authority and of no legal effect. The respondent University will send the petitioner's English Paper 'B' to the Sub -Examiner (presently appointed for the said paper) for re‑marking. Thereafter, the result card will be issued to the petitioner on the basis of re‑marking of English Paper 'B'. Q.M.H./M.A.K./N‑30/L Petition accepted.