The Pakistani Spectator

On 16^th January 2009 during the final hearing of an issue before the Islamabad High Court, petitioner Azam Khan Sultanpuri, who is one of the challengers of extra 21 marks awarded to Farah Hameed Dogar, argued that the Chairman, Federal Board of Intermediate and Secondary Education (FBISE) acted in gross violation of the rules while awarding extra marks to the daughter of Justice A Hameed Dogar, Chief Justice of Pakistan (CJP). The Court held that:

‘There is nothing wrong in the marks increased in re-evaluation by the experts in the field and no exception can be taken by this court to the procedure adopted by the chairman (Federal Board of Intermediate and Secondary Education) and the re-evaluation made by examiners.

In order to foster the principle of justice a wrong had to be remedied. In the absence of a statutory provision, residuary power rests with the authority to undo manifest case of victimization by the examiners.

An examinee may not suffer in his career on account of incorrect marks awarded by a sub- or head-examiner, in the absence of supervisory power with the board or the university directing re-evaluation.’

Chief Justice Sardar Mohammad Aslam of IHC observed as above while rejecting the two petitions for being without merit. The petitions were moved by Iftikhar Hussain Rajput and M Azam Khan Sultanpuri of the Tehreek Falah-i-Pakistan.
The 14-page court order also asked the secretary of the ministry of education, the controlling authority of the FBISE, to consider the possibility of bringing an amendment to the board rules to provide a procedure for re-evaluation of papers.

Going into details of judgments; two samples of Miss Farah Hameed Dogar’s answer sheets were made part of the Islamabad High Court’s recent judgment to prove ‘irregularities’ that were cited as the reason for re-assessment of her papers. In one case pertaining to the paper of Physics II, despite her answer being incorrect, Miss Farah was given two marks while that part carried only one mark. In case of Urdu paper, despite making four mistakes in a two-line answer, she was given two marks out of three.

Ansar Abbasi, an Islamabad based correspondent of the ‘Daily News’ (Ref The Newas dated 19^th January 2009), after announcement of the judgment, obtained question papers of Physics II and Urdu for the FBISE Examinations 2008 and compared the same with the two samples reproduced in the IHC judgment. The comparison revealed that the judgment pointed out a wrong answer for the Physics II answer reproduced in the verdict.

On page 13, the judgment said: ‘on visual examination of Physics-II paper, answer to question No 5(b) is given below: - “No, the plates of capacitor is not of different sizes; however to decrease the electrostatic factor a dielectric medium is putted in between them.’ Then the judge wrote: ‘The examiner crossed the question and awarded zero mark. Later on, he gave one mark. On re-evaluation (re-assessment), another mark was added.’ It means that in this particular question of the paper, the candidate got two marks.

The question paper, however, shows that the above answer pertains to XIV (b) of Q.2, which reads as: “A capacitor is connected across a battery: (b) Is this true even if the plates are of different sizes?” It carries total one mark as part XIV, having three sub-parts — a, b and c — had total three marks. Against the answer reproduced above, the candidate, when reassessed, got two marks against the part that carried only one mark. It means even if Miss Farah’s answer was 100 per cent correct, she would not have got more than one mark, but she got two. The Chairman Department of Physics, Quaid-e-Azam University, Islamabad, Dr Hoodbhoy, when contacted for opinion, said that in the above given sample in which Miss Farah was given two marks after the controversial reassessment, she actually deserved zero.

In Urdu paper, according to the judgment, one mark was awarded in answer to a question, reproduced in the judgment, while after re-assessment; the candidate was given an additional mark. The question paper of Urdu shows that the question — 2(i) — that asked Babar’s toughness carries total three marks, out of which Miss Farah got two marks despite making two spelling mistakes and two mistakes of idioms. In a language paper, spelling and grammatical mistakes are taken seriously, but in Miss Farah’s case, after one mark, she was given two marks.

After reproducing the two samples and details of marks originally given and revised, the judge said: ‘I do find some of the irregularities in other papers too. In such a situation, when the chairman examined the answer books of the papers in dispute, he made a decision, rightly so to direct re-assessment. …… There is nothing wrong in the marks increased in re-evaluation by the experts in the field and no exception can be taken by this court to the procedure adopted by (the) chairman and the re-evaluation made by examiners.’ Overlooking such scandalous flaws, the above ruling of the judge leaves many questions to ponder upon our Pakistani system of extending personal benefits and favours to brother judges flouting the prevailing norms and taking damn care of the judiciary’s reputation.

Going into more details of the IHC’s verdict in this case, the laws knowing people and educationists have declared it as full of flaws, discrepancies, inconsistencies and inaccuracies. A careful reading of the 14-page decision shows; on page 7 for instance, that the judge, perhaps confusing re-checking with re-assessment, gives a misplaced ruling: ‘Bare reading shows that an embargo has been placed on re-assessment of any answer book until publication of the result.’

Rule 1.5 (a), as quoted in the FBISE’s rules book and copied in the verdict, reads:

‘The answer book of a candidate in any examination shall not be re-assessed under any circumstances. However, after the publication of the results of the board’s examination, if a candidate, whether passed or failed, has strong grounds and belief that some mistake has been made in connection with his results, he/she may apply to the controller of examination (secrecy) on prescribed application form along with attested photocopies of marks sheet for re-checking of his answer book, in one paper or more as the case may be, on payment of prescribed fee.’

This rule speaks of ‘re-checking,’ not of ‘re-assessment’ but only after publication of the result. But the judge’s observation suggests as if re-assessment is allowed after declaration of result.

The judgment simply omits Rule 1.5 (e), which, while explaining Rule 1.5 (a), reads that:

‘Whereas the re-checking does not mean re-assessment or re-evaluation of the answer book, the chairman or any officer of the re-checking committee appointed by him shall see that:

1) There is no mistake in the grand total on the title page of the answer book;

2) The totals of various parts of question have been correctly made at the end of each question;

3) All totals have been correctly brought forward on the title page of the answer book;

4) No portion of any answer has been left unmarked;

5) Total marks in the answer book tally with the marks sheet;

6) The answer book or any part thereof has not been changed / detached;

7) The hand writing of the candidate tallies in the questions / answer books.’

Now the second main issue, IHC’s judgment noted on page 5-6:

‘The sole question requiring examination is whether the chairman possessed any authority to direct re-assessment. The board was created under the Federal Board of Intermediate and Secondary Education Act 1975. Section 11(4) confers absolute jurisdiction upon the chairman to see that provisions of this Act are faithfully observed and he shall exercise all powers necessary for this purpose. Under Section 17, the board has been empowered to make regulations carrying out the purposes of this Act.’

But on page 7, the same judgment says: ‘Regulations do not confer any power on the chairman to direct re-assessment/re-evaluation of any answer book but such a power does reside in him being the chief executive of the board.’

Moreover, the judgment seems to have omitted to ponder upon Clause 8 of Chapter 4 of First Regulation of the Schedule of the Act titled ‘Chairman’s power in cases of hardship’ which says: ‘ ………… The orders of the chairman, passed under this regulation, shall be reported to the board for information; provided that such orders of the chairman shall not alter the award of marks, obtained by a candidate or his result determined on the basis of that award.’
It is therefore, clear that the chairman has no authority to pass any order that can change the result of a candidate. Interestingly, while the judgment ruled that the chairman had such powers, the case file of Farah Dogar clearly says that: ‘the chairman had passed the order for re-assessment in relaxation of the rules’. The Act, however, does not give such a power at all and there is also no provision either in the Act or the rules allowing such a relaxation.

It is a cogent fact that the Federal Board has also favoured Farah, may be obliging government’s instructions, during proceedings in the IHC by twisting and wrongly interpreting their own rules. It is commonly known that in all universities and boards, the answer books of examinations are checked by examiners and then minimum 10% are rechecked by Head Examiners. When the checking procedure is complete, the all lots of papers are sealed in ‘secrecy branch’ from it could only be taken out under orders of the chairman when required for re-checking (and not re-assessing). Each Head Examiner has to submit a certificate to the board under Rule 7.6L(4) that ‘at least 10% papers have been re-checked’. Under this rule this re-marking, re-checking or re-assessment by the head examiner can only be done before announcement of result.

While explaining this rule in the IHC the Chairman and his counsel produced this rule in a derogatory way conveying that perhaps this rule can also be applied after announcement of results. This rule is applicable as such in all the boards and university examination directorates across Pakistan and everywhere its sanctity is always kept in tact. So many times the higher courts were moved in some cases but the courts especially the Supreme Court always avoided to issue such decisions declaring all as ‘technical matters’.

Coming to legal procedures now, the citing of judgments in all higher courts are substantiated on previous references of laws explained or rulings passed in similar or nearly similar cases. The analysis of the rulings used as basis of IHC’s this decision comes up as; firstly, PLD 1992 S.C. 263 (which does not issue any re-assessment order); the second case law - 1995 MLD 899 - points out flaws in the system and called for an elaborate mechanism against possible lapses of examiners, etc, but does not pass any direction to carry out re-assessment in any particular case. The third case law pertains to a high court seeking suitable amendments in the rules of a university so that “re-checking” of answer books in very genuine cases could be undertaken. Therefore, the case laws relied on in the IHC judgment either talk of the university system or of high court’s decisions containing directions to make appropriate rules, none of them directly dealing with a re-assessment issue.

Thus most of the cited laws become irrelevant either because they pertain to universities or for the embargo laid down in the latest Supreme Court decisions. The Supreme Court, at numerous occasions, has categorically declared that re-assessment could result in the collapse of the whole education and examination systems. None of these Supreme Court rulings has been cited in the IHC judgment. These SC rulings are 1996 SCMR 676, 1996 SCMR 1872, and 2002 SCMR 504. None of these case laws have directly ordered re-assessment but speak in general terms about framing of such rules.
The latest SC ruling (CP No. 248/2002 written in 2004), cited in the present decision basically restores powers of a vice-chancellor to direct re-evaluation which was taken back earlier from him by deletion of rule. It was done to keep a check and balance system in the university affairs. It seeks the reversal of the deleted power of the vice-chancellor to order re-evaluation and nothing to do with a question of re-assessment in a board’s examination.
If this derogatory decision is not challenged in the Supreme Court or, in case challenged and it is upheld then, Justice Sardar Aslam khan of the IHC, who is otherwise retiring in March this year, is elevated to the Supreme Court, his promotion would be taken as an alleged reward for according a judicial certificate to a blatant action. His three-year extension in service will be considered as a present for handing down the ruling in the case of enhancing 21 marks of Farah Dogar in her intermediate papers through unprecedented re-assessment and re-marking. If his promotion materializes, it would be conveniently compared with the past appointment of Irshad Hasan Khan as Chief Election Commissioner (CEC) after his retirement. ‘As chief justice, while heading an enlarged Supreme Court bench, he had not only validated Pervez Musharraf’s October 1999 military coup but also given him three years to rule, and in return got three years as CEC.’

The intelligentsia from the whole country has offered open criticism on this decision.

Former Acting CJ Bhagwan Das has opined that this decision of the IHC is against the basic principles of justice and prevailing legal provisions. The Board (FBiSE) has acted against the constitution of Pakistan because in this way the rights of equality for all is twisted and used to favour only one candidate though she was a daughter of the sitting CJ. Justice B Das said that in law such decisions are termed as ‘Judgement per in curia, which means that this decision has flaws for which an appeal in the higher court is normally preferred. He especially quoted an example that if today son of a farmer gets top of the examination, tomorrow a feudal lord may use his influence and wealth and by means of this law he would get his son at the top.

CJ (Rtd) Saeed uzzaman Siddiqui told the pressmen that this decision must be challenged in the SC otherwise all the universities and boards will be under obligation to exercise and make use of it as law and it will become extremely hard and complicated for the education departments to survive with floods of applications after every exam.

Justice (Rtd) Wajihuddin opined that this decision will be very detrimental for noble cause of education as a whole. It must be fought against. We’ve been receiving applications against the boards and authorities but in this Farah’s case the applicant and the board were on the same side. Very astonishing. He said that this decision has not been drafted by a court, it seems. Only the courts acting under PCO or Martial Law provisions can announce such judgments. He also said that the media should keep on pointing such flaws for the public so that the justice should find its natural way.

Barrister Akram Sheikh, Justice (Rtd) Tariq Mehmood, Senator S M Zafar, and Justice (Rtd) Fakhr udin Ahmed have also conveyed similar feelings rather in more bitter words.

To summarize opinions of the above legal minds; this decision of the IHC, if not taken back by the SC, could serve a serious blow to the whole education system where marks obtained by candidates in their intermediate papers determine their future entry in the professional institutions where even one single mark’s win on next competitor matters a lot. If the ‘re-evaluation could serve as a check on arbitrariness, casualness and negligent attitude of the examiner’, as the ruling said, it would benefit only the dominant people, who would be in a position to twist the arms of the chairmen of the examining boards to favour their kith and kin. This ruling can open the floodgates of massive fraud, abuse, misuse, manipulation and exploitation of the system by the mighty, high-placed and well-connected people in future. It would also affect the future of the children of the have-nots, deprived and underprivileged parents.

From now on, dull and unintelligent children of the influential people, who fail to perform better in examinations or entry test, would be in a position to succeed in jacking up their marks because of their parents’ high connections, leaving their brilliant counterparts bowled over and flabbergasted. Already there are innumerable complaints that justice and merit has always been a major casualty at the hands of the high-ranking lot in this country.

Quoting an opinion of Tariq Butt of ‘the News’ dated 20^th January 2009:

‘One can disagree with the IHC Chief’s observation that ‘to foster the principle of justice a wrong has to be remedied.’ In fact, a wrong has been condoned and reinforced in the instant case. A bad judicial precedent has been set. The chiefs of the examining boards and universities have now been armed with extraordinary authority. Its exercise would benefit only the children of the privileged, rich and wealthy people. The ruling has paved the way for favouritism, nepotism and discrimination.’

God bless Pakistan where such values of justice are prevailing.

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