This judgment shall dispose of both the writ petitions as common question of law and fact is involved.

2. In writ petition No. 1585 of 2008, petitioner has alleged that last month, he learnt that respondent No. 4 has used undue influence in having her grade improved from “C” to “B” by addition of 20 marks and thus got admission in a medical college as a “privileged person”. Respondent No. 4 was given preferential treatment and adjusted in the Medical College against “Judges Quota”, which has caused public nuisance. Quota Systems are discriminatory and promote corruption. Granting of extra marks to respondent No. 4, who is a daughter of an Honourable Judge is disgraceful, capricious and goes against the grain of independence of Judiciary and supremacy of law.

3. In writ petition No. 1576 of 2008, it is alleged that petitioner No. 1 is an association formed for the welfare and well being of citizens. Petitioner No. 2, a practicing lawyer, is President of the said association. He was shocked by the publication of news item, that Federal board of Intermediate and Secondary Education, Islamabad, and, particularly the previous Chairman of the Board awarded 21 additional marks to the daughter of Hon'ble Chief Justice of Pakistan in Intermediate Examination. The contents of the news, if true, disclose alarming situation. It is prayed that the marks awarded to the candidate be declared as unlawful.

4. Learned counsel for the petitioner in write petition No. 1585 of 2008, argued that answers to his petition have not been given specifically by the respondents, hence, he is not in position to say much about facts but strenuously urged that Chairman FBISE has no power under the rules to direct re-assessment/re-evaluation.

5. Mr. Muhammad Azam Khan Sultanpuri Advocate, learned counsel argued that publication in the newspaper, in regard to re-evaluation of papers of Ms. Farah Dogar, has caused alarm in the public and independence of judiciary has been undermined calling for interference.

6. On the other hand, Malik Muhamad Qayyum, learned senior Advocate led the main argument contending that Chairman, Federal Board of Intermediate and Secondary Education, Islamabad had the jurisdiction to direct re-assessment/-re-evaluation of the papers in cases of real hardships and exceptional nature. He relief upon:-

i. PLD 1992 S.S. 263 (Board of Intermediate and Secondary Education, Lahore through its Chairman and another VS. Mst. Salma Afroze and 2 others).

ii. 1995 MLD 899 (Lahore) (Imtiaz Rasul vs. Board of Intermediate and Secondary Education, through Chairman Board Faisalabad and another).

iii. PLD 1995 Peshawar 43 (Dr. Mian Mohsin Shah and 7 others Vs. University of Peshawar through Vice Chancellor, Peshawar and 16 others).

iv. 1996 SCMR 263 (University of Punjab, through Vice Chancellor, Lahore and another vs. Mrs Rubi Farzana and 3 others).

v. 1998 CLC 1984 (Lahore) (Shagufta Man vs. Islamia University, Bahawalpur and another).

vi. 1999 MLD 2060 (Avesha Marvam vs. Board of Intermediate and Secondary Education. Gujranwala, through Chairman and 2 others).

vii. 1999 CLC 694 [Lahore], (Khurshid Ahmad vs. Bahauddin Zakrariya University, Multan and 3 others).

viii. 2004 SCMR 606 (Muhammad Usman Qayyum vs. University of Engineering and Technology Lahore and 5 others).

ix. 2004 CLC, 889 (Lahore) Muhammad Arif Sindhu vs. (University of Punjab, Lahore through Vice Chancellor, Lahore and another).

x. 2006 MLD [Lahore] 1776 (Muqarab Akbar vis. Bahauddin Zakrariya University Multan and 2 others).

xi. Un-reported judgment of Hon'ble Supreme Court of Pakistan in C.P No. 248/2002 decided on 11-3-2004 (University of Punjab, through its Registrar, new Campus Lahore Vs. Sumaira Javed).

xii. AIR 1981 Bombay 126 (Miss Avadhani Meena Ramchandra and etc. vs. Maharashtra State Board of Secondary and Higher Secondary Education, Pune and etc).

xiii. Reference was also made to legal maxims by HERBERT BROOM, to contend that there in no wrong without a remedy.

7. I have heard the learned counsel at length and perused the record.

8. Respondent No. 4 submitted an application form for re-checking of papers (a) English-II (b) Urdu-II (c) Pakistan Studies (g) Physics-II On the title on this application form, Chairman has passed an order:

“I would like to see her answer books myself also”
On 21-08-2008, answer scripts of respondent No. 4 were submitted to the Chairman, who ordered “please have the answer book of this candidate re-assessed” vide his order dated 10-09-2008. Following the directive of the Chairman, re-assessment of answer books were made on 13-09-2008 by the following Head Examiners in the office of the Board:
Assistant Controller Examination forwarded the result with enhanced marks to the Chairman for approval which was approved vide order dated 15-09-2008 and revised marks sheet was issued.

9. The sole question requiring examination is, as to whether Chairman possessed any authority to direct reassessment. 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 and regulation are faithfully observed and he shall exercise all powers necessary for this purpose. Under Section-17 Board has been empowered to make regulation for carrying out the purposes of this Act. Examination Rules-Vol-II were framed by the Board. Rule 1.2(i) reads as under:
“Action taken by the Chairman towards regulating the examinations and ensuring that the examinations are conducted and concluded satisfactorily shall not be called into question n any executive, administrative or judicial proceedings except the Controlling Authority i.e. Board of Governors and the Ministry of Education which may review the same and give such instructions as it may decide.”

Rule 1.5 (a) caters for re-checking of answer book(s)
Rule 1.5 (a)
“The answer book of a candidate in any examination shall not be reassessed 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 from along with attested photocopy 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.”

Bare reading shows that an embargo has teen placed on re-assessment of any answer book until publication of the result of the Board Examination. Regulations do not confer any power to the Chairman to direct re-assessment/re-evaluation of any answer book but such a power do reside in him being the chief executive of the Board.

PLD 1992 S.C. 263:- In this case petitioner dissatisfied with his result requested for re-checking/re-evaluation. A learned Judge of Lahore High Court in interim order directed for re-checking. The matter was taken before the Hon'ble Supreme Court and it was held that:-

“In the absence of any statutory provision, we are left with the residual law laid down by this Court in the Chief Settlement Commissioner, Lahore, V. Raja Muhammad Fazil Khan and others PLD 1975 SC 3.31 where every Court has been authorised to undo fraud, Perversity and a manifest abuse of its authority affecting its jurisdiction. If there was criminal design or a fraud perpetuated on the candidates or a manifest case of victimization by the examiners, then this principle of undoing the wrong was available both to the Board as well as to the Court provided the requisite procedure was adopted and the factual foundation was well established.”

1995 MLD 899:- It was held that “Every regulation has to stand the test of reasonableness. The administrative convenience in the way of re-evaluation sounds hallow. The right of re-evaluation can serve as a check on arbitrariness, casualness, negligent attitude or even malpractice on the part of the examiner. The Board can charge reasonable fee for re-evaluation which may be conducted by a Board of subject Specialists. If the order, judgments or appreciation of evidence by the Courts and Tribunals including full Bench of the High Court are open to scrutiny why should not the action of the examiners be open to verification. The Boards empowered to conduct examinations, are under an obligation to ensure correctness of evaluation process and elimination of the possibility of errors at any rate, flowing from negligence, casualness, indifference or possible acts of misconduct on the part of the examiners and others.

This calls for an elaborate system against the possible lapses of the examiners as also the supervisory staff. The adoption in the system of examinations will surely increase the confidence of the examiners in the examinations and would serve as a check on the arbitrary and irresponsible manner of marking.”

PLD 1995 PESHAWAR 43:- High Court has direct to the University to suitably amend rule 23 so that re-checking of answer book in very genuine cases could be undertaken.
1996 SCMR 263: - In this case, it was held that re-evaluation made by the first Examiner, by which marks had been increased is to be accepted, warranting no interference. Supreme Court was pleased to refuse leave.

1998 CLC 1984:- A Division Bench of Lahore High Court requisitioned the answer sheet and on examination found glaring irregularity and thus directed re-evaluation.

1999 MLD 2060:- A learned judge in chamber of Lahore High Court, exercising constitution jurisdiction directed re-checking and award of correct marks to a question as the sub-examiner awarded zero mark against an objective question, which was found correct by the other examiner.

1999 CLC 694:- In this case the constitution jurisdiction was not exercised by a Division Bench of Lahore High Court for re-evaluation of paper's concluding that this can be done only in cases of exceptional nature.

2004 SCMR 606:- The Hon'ble Supreme Court itself directed re-evaluation of marks on account of hostile attitude and malafide act of Engineering University, Lahore.

2004 CLC 889 [Lahore]:- The Vice Chancellor directed re-evaluation, which was conducted. It was again sent to another examiner for re-evaluation without any justification and reason and thus quashed.

2006 MLD [Lahore]:- In this case it was held that Vice-Chancellor could order re-evaluation of papers, but only on satisfying 'himself as to existence of exceptional circumstances. Satisfaction on Vice Chancellor being his exclusive discretion High Court could not interfere with such discretion in its constitutional jurisdiction.

UN-REPORTED JUDGEMENT OF HON'BLE SUPRME COURT OF PAKISTAN IN C.P. NO. 248/2002. The power had been given to the responsible officer like Vice Chancellor to direct re-evaluation which was taken back by deletion of rule. It was held that to keep the check and balance system, it needs that such a power must reside in the Vice Chancellor.

AIR 1981 BOMBAY 126:- It was held that regulation prohibiting inspection and disclosure are void. No Justification whatsoever, to restrict the objection of correction of mistake only to verification and to exclude re-evaluation. Board is thus obliged to permit even re-evaluation so as to provide for machinery and procedure making this Implicit right effective.

The rule was made absolute in all cases directing the board to give inspection and allow application for re-evaluation.

UBI JUS IBI REMEDIUM:- There is no wrong without a remedy (b) Just signifies here “ the legal authority to do or to demand something” (c) and remedium may be defined to be the right of action, or the means given by law, for the recovery or assertion of a right. According to this elementary maxim, whenever - the common law gives a right or prohibits an injury, it also gives a remedy (d) lex simper dabit remedium (e) If a man has a right he must, it has been observed,” have a means to vindicate and maintain it, and remedy if the is Injured in the exercise and enjoyment of its and, indeed, it is vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal” (f) It appears, then, that remedium, although sometimes used as synonymous with action, has, in the above, a more extended “ action” is in fact, one peculiar mode pointed out by the law for enforcing a remedy, or for prosecuting a claim or demand, in a Court of- justice -"action n'est auter chose qua lyall demande de son droit" (g) an action is merely the legitimate mode of enforcing a right, whereas remedium must here be understood to signify rather the right of action, or jus persequendi in judicio quod sioi debetur (h) which is in terms of the definition of the word action in the Roman law (i).

10. On examination of the above precedents, it appears that when there is a wrong, a remedy is to be provided to an individual to vindicate his grievance. In AIR 1981 Bombay, 126, it was ruled that regulation of the Board not permitting re-evaluation is void and was thus struck down, declaring that a candidate must have a right for re-evaluation of his answer book which can not be denied to him. The constitutional courts in Pakistan, directed re-evaluation in cases of hardship and exceptional nature, itself, where the rule did not permit such an exercise. The emphasize was led that 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. Re-evaluation was thus considered an effective measure to stop the arbitrariness of the Examiner.

11. The sealed record of the answer scripts of respondent No. 4 was de-sealed in the presence of the learned counsel for the parties who also examined the same.

Undeniably it is not the domain of this court to sit in judgment over the re-evaluation by the Examiner, who are specialist in their own field and directed the increase in marks. 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 a dielectric medium is putted in between them.”
The Examiner crossed this question and awarded zero mark. Later on the gave it one mark. On re-evaluation another mark was added. Similarly in answer to question No. 3, 02 marks were given and on re-evaluation one mark was added. In another question, which was crossed considering it to be wrong, was found correct and one mark was awarded. In another answer, firstly zero mark was awarded where-after one mark was given by the same examiner. On re-evaluation another mark was added.

12. In Urdu paper one mark was awarded in answer to a question re-produced below but on re-evaluation two marks were awarded:-

Examiner put a cross mark awarding zero mark where-after, he awarded one mark. On re-evaluation two marks were given. 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 the experts in the field and no exception can be taken by this court to the procedure adopted by Chairman and the re-evaluation made by examiners.

13. To foster the principle of justice a wrong has to be remedied. In the absence of a statutory provision, residuary power rests with the authority to undo manifest case of victimization by the authority to undo manifest case of victimization by the examiners. This view was taken by the Hon'ble Supreme Court in Salma Afroze case, supra holding that the principle of undoing the wrong was available both to the Board as well as to the court. Re-evaluation can serve as a check on arbitrariness, casualness and negligent attitude of the examiner. The Secretary Ministry of Education, controlling authority of the Board, may see the possibility of bringing an amendment in the rule to provide a machinery and procedure for re-evaluation.

14. In view of what has been discussed, I find that petition are without merit and are thus dismissed.