1996 SCMR 263 (PLP)

SALEEM AKHTAR, J.‑‑‑The petitioners seek leave to appeal against the order of the learned Judge in Chamber, whereby petition filed by respondent No. 1 was allowed declaring her successful in the papers of Forensic Medicine and Pharmacology in her 2nd Annual Professional Supplementary Examination of the University of Punjab held in 1993.

2. As respondent No. 1 had failed in these papers she applied for checking of the papers which was carried out and she was informed that the marks have correctly been awarded. On 11‑11‑1994 respondent No. 1 applied for re‑evaluation of the papers. It was alleged that respondents Nos. 3 and 4 who were the Professors and Examiners in the subjects in which she had failed had approached her for favour of her husband but she expressed her inability to do so due to which out of revenge they awarded lesser marks and failed her. The Vice‑Chancellor passed an order on 10‑10‑1994 that script of Pharmacology "be sent to Dr. Shahnaz Aftab for re‑evaluation and then to another Professor." In respect of Forensic Medicine the script was to be re evaluated by Professor Su'da Masood. Dr. Shehnaz Aftab re‑evaluated and awarded 77 marks as against 68 marks originally awarded to respondent No.

1. On receipt of her report the Vice‑Chancellor sent the script for re‑evaluation by Professor Hidayat Hussain Khan who seems to have maintained the original marking with the remarks that "Question No.3 has been overmarked. The award should be 08 marks" and "Part (a) of Question No. 4 has not been awarded marks. However, the award in this part should be Zero". As regards script of Forensic Medicine, Dr. Su'da Masood was of the opinion that the marking was quite lenient and even one mark in any question could not be raised. 45 marks originally awarded to her were maintained. The same script was then sent to Dr. Ijlal Haider who reduced it to 35 marks. The petitioners informed respondent No. 1 that the result declared would be maintained Respondent No. 1 then filed Constitution Petition which was allowed,

3. The learned Judge noted that the allegation with regard to tampering with certain figures in the answer script appeared to be justified as figure 18 appeared to have been changed to figure

08. Similarly it was noted that figure 7 in answer to Question No. 7 of the paper of Pharmacology appeared to have been changed to figure of 4 marks. It was also observed that the University failed to produce the mark‑sheet of Pharmacology. paper in Court and no counter‑affidavit was filed by the petitioners and respondents Nos. 2 and 4 to rebut the allegation made in the petition. Considering all these facts and relying on Regulation No. 3 Volume 11 of the Calendar of University of Punjab the petition was allowed and respondent No. 1 was declared to have passed 2nd Professional M.B.,B.S. Examination of the University. From a perusal of the facts and the impugned judgment it seems clear that respondent No. 1 had challenged the marking awarded to her on ground of mala fides instances of which had been mentioned specifically and also that with mala fide intention marks were tempered by reducing the numbers in the answer script and also the mark‑sheet. The petitioners and respondents Nos. 2, 3 and 4 did not file any counter‑affidavit to rebut the allegations which remained unchallenged.

4. Mr. Khawaja Tariq Rahim, the learned counsel for the petitioners contended that written reply had been filed by the petitioners denying all the allegations but such written statement cannot take place of an affidavit, particularly, when specific allegations were made against respondents Nos. 3 and

4. It was their duty to have rebutted it by filing their own personal affidavits. Be that as it may, the procedure of te‑evaluation also does not seem to have been followed in a proper manner. The learned counsel for the petitioners has filed photo copy of the document regarding appointment of Professors for re‑evaluation which clearly shows that it lacked bona fides. For re‑evaluation of Pharmacology script the Vice‑Chancellor passed an order dated 10110‑1994 which reads as follows:‑ "Script be sent to Professor Shehnaz Aftab and then to another Professor." From this document it appears that a marginal note was put up on 16‑10‑1994 that Professor Shahnaz Aftab had sent her report and the same was placed for perusal arid appointment of another Examiner. Thereupon, on 18‑10‑1994 Professor Hidayat Hussain Khan was appointed to re‑evaluate. The learned counsel for respondent No. 1 contended that there was no need to appoint two evaluators. The appointment of 'two evaluators cannot be challenged because perhaps the Vice‑Chancellor wanted authentic report from two Professors but the manner the exercise has been done smacks of all bona fides. It would have been better if both the evaluators would have been appointed at the same time but this was not done. It was after receipt of the report of Professor Shehnaz Aftab and its perusal that Professor Hidayat Hussain had been appointed. Such reappointment will always be seen with suspicion and will not inspire confidence. Professor Hidayat Hussain reduced the marks awarded in Questions Nos. 2 to 08 instead of 14 and Part (a) of Question No. 4 to which no mark had been awarded was marked as Zero. Professor Shehnaz Aftab had increased the marks making a total of 77 marks instead of 68 and was of the view that the candidate had been marked down in other questions, and also Part of Question No. 1 had been overlooked. The learned counsel for the petitioners contended that there was no mala fide in appointing two evaluators. However, in the facts and circumstances of the case particularly the allegations made it was necessary for the Vice‑Chancellor to have acted in a more transparent, bona fide and just manner which course was not adopted by him. There should not have been any element of malice on his part in doing so but prima facie it seems as if the assessment of second evaluator may have been with certain intention which in the circumstances respondent No. 1 can impute to be mala fide. If both the evaluators would have been nominated at the same time no one could have objected or imputed motive. While appointing evaluator only one name was mentioned and after the report had been submitted the second evaluator was nominated. Such practice cannot be conducive to the sense of justice. In Forensic Medicine it was ordered that the script be sent to Professor Su'da Masood and if she was not available then to Professor Awan. Professor Su'da Masood was available and she submitted her report. She did not disturb the marks awarded to respondent No.

1. Again it seems that after the receipt of the report of Awan, Professor Su'da Masood the paper was sent to Professor Ijlal Haider who reduced the marks to

35. In this case also it seems that second examiner was appointed after receipt of the evaluation report from Professor Su'da Masood which in the background of facts of this case was not proper and justified.

5. It is pertinent to mention that under Regulation 23(b) of Chapter VII entitled 'Conduct of examination' contained in the Calendar of the University of the Punjab for the year 1990 Volume‑I the Vice‑Chancellor has been empowered "to get a particular answer‑book or answer‑books re‑examined in exceptional cases where there is a strong ground to believe that the same have not been justly evaluated". Therefore, the order of re‑evaluation by the Vice Chancellor was not a routine one. He was satisfied that there were strong grounds to believe that answers scripts were not justly evaluated. All this he would have decided on the basis of allegations made by respondent No. 1 which may not have been accepted without making any inquiry and at least there would have appeared at least a strong suspicion about the evaluation of the disputed answer scripts. In such circumstances the Vice‑Chancellor ought to have been more cautious and discreet in his actions. Bias, malice and mala fides vitiate all proceedings. The Courts while interfering with the discretion exercised by any authority have to be cautious, and have to ascertain from facts and circumstances, the existence of ton! likelihood of bias. Where in cases it is difficult to prove bias the Court determines its existence on "probabilities to be inferred from the circumstances". Another approach to the problem is that after examining the facts and circumstances the Court has to determine A whether a reasonable man could in the circumstances reasonably suspect the bona fides and "(he) is left with the impression that there is a real likelihood of bias". In de'Smith's Judicial Review of Administrative Action Fourth Edition by J. M. Evans it has been observed at page 263 as follows:‑‑ "However, the pendulum has now swung towards a test of reasonable suspicion, founded on the apprehensions of a reasonable man who had taken reasonable steps to inform himself of the material facts. 'Reasonable suspicion' tests look mainly to outward appearances; `real likelihood tests focus on the court's own evaluation of the probabilities; but in practice the tests have much in common with one another, and in the vast majority of cases they will lead to the same result. For the Courts to retain both tests as alternative methods of approach is unlikely to cause serious uncertainty, and there may be advantages in preserving a measure of flexibility. It would be surprising, surely, if a Court were to refuse to set aside a decision on "ground that a reasonable observer could not have discovered facts that subsequently came to light and which indicated to the Court that there was a real likelihood of bias in the adjudicator." Applying these principles we find that the facts and circumstances are sufficient to create a reasonable suspicion in the mind of reasonable man that the entire exercise for re‑evaluation was biased.

6. Even in administrative matters it is not the sole discretion of the authority to pass orders in any manner it likes. It must follow the rules and principles of justice and equity so that even the person against whom order has been passed should not stamp it as mala fide and a result of bias or malice. Orders cannot always be in favour of the complainant, it may go against him but if malice is imputed for procuring the order which from circumstances seem: to be prima facie possible then unless it is explained or rebutted it becomes difficult to justify it.

7. The learned counsel for the petitioners submitted that the learned Judge relied upon Sferoen Masood v. University of Punjab (1985 CLC 298'1) in which after re‑evaluation had been made a further revision and re‑evaluation was held to be illegal. The learned counsel contended that the fads in this case were completely different and the judgment is not applicable to the present case. In the referred case when the candidate applied for re‑evaluation of the answer script it was sent to Dean Faculty of Law for re‑evaluation who enhanced the marks from 37 to

58. Thereafter, the University on its own sent petitioner's script along with scripts of other candidates to the panel of two experts for just evaluation. On such re‑examination her marks were reduced to

40. This was challenged and the petition win allowed on the concession of the learned counsel for the. University that tile script of the petitioner having been examined by Dean Faculty of Law the task of evaluation stood completed. Regulation 23 referred above contemplates re-examination in exceptional cases and does hot speak of second or third re-examination. However; considering the seriousness of the case the Vice‑Chancellor can appoint more than one examiner for re‑evaluation. But to make this exercise honest, bona fide and transparent the examiners, (if more than one), should be named and appointed at the same time. He should not wait for the report of the first examiner and then appoint the second one. There may not be any bias or mala fide but, depending on facts as in the present one it may be viewed with suspicion.

8. The learned Judge in Chamber, taking note of all these facts and also that the allegations of mala fides have not been rebutted and further that the tempering in the answer script was visible to him and that the mark sheet was not produced came to the conclusion that the re‑evaluation made by the first examiner by which the number had been increased or maintained Should be accepted. In our view the discretion exercised by the learned Judge was proper and justified in the circumstances of the case and needs no interference. Leave is refused. AA./M‑68/S Leave refused.