2005 PLP 1632 (CLC)

The brief facts out of which the present writ petition arises are that the petitioner appeared in 1st Professional M.B.B.S. Part-I, Annual Examination, 2003 and failed in all subjects. Thereafter he appeared in 1st Professional M.B.,B.S. Part-I Supplementary Examination, 2003 held in May, 2004 and failed in all subjects. Then he appeared in 1st Professional M.B.,.B.S. Part-I Annual Examination, 2004 held in November/December, 2004 and secured following marks: 1st Professional M.B.,B.S. Part-I Annual Examination 2004 held in November/December, 2004. Subject Internal Assess- ment Oral and Practical Marks obtained Passing Score Remarks Anatomy Theory (100) Practical (100) Total (200) 13 44 66 57 123 50 50 Pass Physiology Theory (100) Practical (100) Total (200) 10 50 58 60 118 50 50 Pass Bio- chemistry Theory (75) Practical (75) Total (150) 12 40 27 52 70 37.5 37.5 Fail in theory by 10.5 marks The respondent declared the result, whereby petitioner failed in Bio-Chemistry but passed Anatomy and Physiology subjects. The petitioner being aggrieved filed this Constitutional petition.

2. Learned counsel of the petitioner submits that there are 15 marks, reserved for internal' assessment. The respondent has awarded all the 12 marks to the petitioner in practical and did not count the proportionate mark in .theory paper of Bio-chemistry, which is not in consonance with the regulations of the respondents which is available at page 121 of the petition. Therefore, action of the respondent is without lawful authority. He further submits that 12 marks have been awarded to the petitioner in internal assessment both in theory and practical as is evident from certificate issued by Professor' Dr. Tasnim Majeed dated 13-4-2005. The respondents have also declared the bifurcation of internal assessment distributed the marks as 50% to theory and 50% to practicaf/viva as per notification dated 7-4-2005. He further submits that petitioner initially got admission in Baqai Medical College and this rule was also applicable there at the time when the petitioner got admission in Baqai Medical College which is also applicable in the examination in question and the same is added to subsequent examination vide Notification dated 7-4-2005. Therefore, action of the respondents is hit by Article 25 of the Constitution. In support of his contention he relied upon Tradex (Pvt.) Limited v. Governor State Bank of Pakistan and another 2003 CLD

756. He further submits that in case 50% of the internal assessment marks be counted in theory paper of the petitioner of Biochemistry then the petitioner is entitled to get benefit of 5 grace marks (concessional marks) according to regulation of the respondents which is available at pages 15 and 16 of the petition.

3. Learned counsel of the respondent-University submits that word "theory" mentioned in Regulation which is at page 121 relates to the performance of the petitioner during the study period in the Institution with regard to the lectures delivered by the Professors and practicals performed by the petitioner before them. Therefore, the word "theory" in the regulation may not be considered to be marks of theory paper. The total marks of theory paper is 75 which have been distributed into two parts i.e. short essay questions =40 marks and MCQs=35 marks whereas "Practical and Oral/Viva paper is also divided into three parts=75 marks

Oral/Viva=30 marks, Practical =30 marks, Internal assessment =15 marks". In case the break up of practical be counted then the internal assessment marks are only to be added in practical and not in theory. He further submits that even if the internal marks are given to the petitioner in theory he will not get pass marks. In support of his contention he placed three charts which are to the following effect: Rizwan Rabbani Case Failing in the subject of Biochemistry Failing in Biochemistry - Existing allocation of marks and score Biochemistry Theory Oral and Practical Total Remarks Internal Allocated Oral and Practical Sub total Allocated Score Allocated Score Allocated Score Allocated Score Allocated Score Failing in theory by 10.5 marks 75 27 15 12 60 40 75 52 150 79 Without prejudice Proposed allocation and score if request of petitioner for equal distribution of internal assessment marks to both theory and practical is accepted (50/50 rule) Biochemistry Oral and Practical Theory Internal Assessment Sub total Internal Assessment Oral and Practical Sub total Total Remarks Allocated Score Allocated Score Allocated Score Allocated Score Allocated Score Allocated Score Allocated Score 75 27 7.5 06 82.5 33 7.5 6 60 40 67.5 46 150 79 Failing in theory by 8.25 marks Note: pass marks are 50% of the proposed revised aggregate score in theory and in practical. Hypothetical/Without prejudice Proposed allocation and score if request of petitioner for distribution of internal assessment marks i.e. 10/15 for theory and 5/15 for practical is accepted. Biochemistry Oral and Practical Theory Internal Assessment Sub total Internal Assessment Oral and Practical Sub total Total Remarks Allocated Score Allocated Score Allocated Score Allocated Score Allocated Score Allocated Score Allocated Score 75 27 10 8 85 35 5 4 60 40 65 44 150 77 Failing in theory by 7.5 marks Note: Pass marks are 50% of the proposed revised aggregate score in theory and in practical

4. Learned Law Officer submits that action of the respondents is in accordance with the Rules and Regulations of the respondents.

5. We have given anxious consideration to the contentions of the learned counsel of the parties and perused the record.

6. It is better and appropriate to reproduce the regulation in question to resolve the controversy between the parties:-- "(3) Biochemistry Total 150 Marks Theory One paper 75 Marks 10 Short Essay Questions 40 Marks 35 MCQs (one best type) 35 Marks Practical and Oral/Viva 75 Marks Oral/Viva 30 Marks Practical 30 Marks Internal assessment 15 Marks . (10 marks from Theory, 5 marks from practical)" Mere reading of the aforesaid Regulation along with distribution of marks reveals that the petitioner is not entitled to get any marks to be included in theory paper out of internal assessment marks. The subsequent A Notification dated 7-4-2005 relied by the counsel of the petitioner also does not advance the case of the petitioner which is also reproduced hereunder: "The Syndicate approved the following Rules for award of Internal Assessment Marks:-- (1) 10% Internal Assessment Marks will be added to both the scores of theory and practical/viva examinations in each Professional M.B. ,B .S. Examination. (2) The distribution of Internal Assessment Marks is recommended as under: (i) 50% in theory (ii) 50% in practical/viva voce (3) A transparent policy in regard to methodology of Internal Assessment will be recommended by Board of Studies and approved by the Syndicate." The note mentioned at the end of the Regulations in the following words:-- (10 marks from Theory, 5 marks from Practical) is an instruction for the Teacher/Professor, who is attending the student throughout the year. Through this instruction he is expected to assess the performance of the student as an Internal Teacher throughout the year and may grant him upto 15 marks. While granting these marks he is supposed to keep in mind that he can grant maximum 10 marks to the student for his performance in his theoretical studies and 5 marks for his performance for practical and viva conducted by the student before the Internal Teacher. The word theory used in this note by no means can be interpreted to include the Internal Assessment Marks in the paper of Theory. Because, maximum marks for Theory Paper are 75 which already stands distributed as 40 and 35 for 10 short essay questions and 35 MCQs respectively. Therefore, there is no scope for adding any mark A in the Theory Paper. The other 75 marks under the heading of Practical and oral/viva also have been distributed as 30 marks for oral/viva, 30 marks for practical and 15 marks for internal assessment. This distribution also indicates that 15 marks for internal assessment is absolutely a different entity having no nexus with the performance of, student during his examination held by the University whether theory, oral/viva or practical. These 15 marks of internal assessment are left entirely to the discretion of the internal teacher and are to be sent by him to the University which are to be added to the total marks obtained by the student in the examination held by the University without making any bifurcation. However, while the Internal Teacher is sending the result of internal assessment he will keep in mind the instructions of the Regulations contained in the note and mention the distribution of marks granted by him keeping in view his performance in theory and practical separately. Learned counsel of the petitioner has failed to point out any Rule and Regulation violated by the respondents which is condition precedent for maintainability of the Constitutional petition as the law laid down by the Honourable Supreme Court in Ali Mir's case 1984 SCMR

433. We also do not find any violation of Article 25 of the Constitution. Even otherwise Notification dated 7-4-2005 has prospective effect and not retrospective effect as the law laid down in the following judgments: Messrs Army Welfare Sugar Mills v. Federation of Pakistan 1992 SCMR 1652 and Pakistan v. Salahuddin PLD 1991 SC

546. In view of what has been discussed above, the writ petition has no merit and the same is dismissed. S.A.K./R-141/L Petition dismissed.