Muhammad Uzair Vs Govt. of KPK

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BEFORE THE PESHAWAR HIáS.\!

ABBOTTABAD BENtLI/ ' ( L .T\ i

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t\ ct4J z•/ Writ Petition N ?'a*44-SthSYl7

Muhammad Uzair son of Doctor Zardad Muhammad, resident of Civil Officers Colony, Abbottabad, presently Student of BDS, 3Vd Professional, Ayub Medical College, Abbottabad.

.PETITIONER

VERSUS

1.Govt. of Khyber Pakhtunkhwa, through Secretary Department of I-Iealth, Govt. of Khyber Pakhtunkhwa, C/o Civil Secretariat, Peshawar.

ci to be Tru

EXAMINER

Ayub Medical College of Dentistry, Abbottabad.

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Khyber Medical University, through Vice Chancellor, Khyber Medical University, Hayatabad, Peshawar.

El Doctor Musarrat Barki, Head of Department (1101)), Community Dentistry, Ayub Dental Section, Abbottabad.

.RESPONDENTS

WRIT PETITION UNDER ARTICLE 199 OF

THE CONSTITUTION OF ISLAMIC REPUBLIC

FXL# TODAY OF PAKISTAN, 1973, AS AMENDED UPTO

ADDITIONAL

H RF.CJSTRJR

1 COURT

DATE, SEEKING i)ECLARATION/ ARLM)nAn fg tJr

DIRECTION TO THE EFFECT, THAT

JUDGMENT SHEET

IN THE PESHAWAR HIGH

ABBOTTABAD BEN(

JUDICIAL DEP

W.P No. 645-A of 2017

JUDGMENT

Date of hearing: 23.11.2017.

Petitioner (Muhammad Uzair) Sardar Arnan Khan, Advocate by:

Respondent No. 1 (Principal Mr. Yasir Zahoor Abbasi, AMC) by Asstt: A.G.

Respondent No. 3 (KMU) by: Mr. Mansoor Tariq, Advocate.

Respondent No. 4 (Dr. Musarrat Ms. Raheela Mughal, Barki) by Advocate.

Sycd Arshad All, J:- The petitioner seeks the constitutional jurisdiction of this court praying that:- 'it is, therefore, most respectfully prayed that EXAMINER I_—m by accepting the instant petition, the

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29Jr1/' respondents may graciously be directed to Peshawar High add the neglected marks to the petitioner ithnr,4I._ -- ench

-. correct the total marks in the oral and practical of Community Dentistry as per admission of respondents college and HOD of the department of Community Dentistry so as to save the precious year and future of the petitioner from going to waste. Any other

order/relief/direction which this August Court may deemed fit and proper in the circum stances of the case by invoking its parental jurisdiction and decisions be also given."

2.Brief but essential facts of the case are, the petitioner is the student of Ayub Medical College of Dentistry, Abbottabad. His academic record placed on file shows that he could not qualify the first professional annual examination held in the year 2015, however, on his second chance, he was able to pass the first professional supplementary examination in March, 2016. Petitioner appeared in BDS 2nd year annual examination, 2016, however, he could not pass the subject of Community Dentistry, hence he reappeared in the said paper in the supplementary examination held in March, 2017. Again he could not qualify/pass the said paper. The result was EXAM1yg 21 c1ared on 2nd May, 2017. According to his result, he

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d the written paper, however, could not qualify the Bench oral and practical examination, hence, was declared failed.

Indeed he obtained 36 marks out of 50 in written paper, whereas 22 out of 50 in oral and practical examination.

The required marks to pass oral and practical examination 6 is 25. According to the rules the 50 marks for oral and practical assessment have been bifurcated as following:-

Viva . = 20 marks

OSPE = 20 marks

Internal Assessment = 10 marks

Every college, where a student is pursuing his studies, is required to submit the marks given/awarded to a student to the Controller of Examination of Khyber Medical University, before the annual examination. In the case of petitioner, he has obtained 11 marks in viva and 11 marks in OSPE, whereas he was awarded zero marks in the internal assessment by his own college/department and such result was submitted to the controller of examinations before the declaration of result on 2Iid May, 2017 on declaration of result1 the petitioner, feeling himself aggrieved of his internal assessment, through a letter addressed to his I-lead of Department of Community Dentistry complaining about awarding him zero marks in his internal examination. On this complaint, the I-lead of Department wrote a letter dated nil to the Controller of Examinations, Khyber Medical University, Peshawar, wherein she has given the following details regarding the internal assessment and the marks awarded to the petitioner in his oral and practical examination:- Viva = 11 marks

OSPE = 11 marks

El

Internal Assessrnent= 03 marks.

I

The learned counsel appearing on behalf of the petitioner has argued that when the head of department has categorically stated in letter dated nil that total marks obtained in oral and practical examination by the petitioner are 25, then obviously, it was the respondent university who had incorrectly calculated the marks of the petitioner and as such the petitioner is not at fault, either it is the respondent College which could not communicate the marks of internal assessment before the declaration of result or the university has omitted to add/assign 3 marks of his internal assessment.

The learned counsel, Mr. Mañsoor Tariq,

Advocate appearing on behalf of the respondent EXAMINER has argued and placed on file copy of the

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/J' detailed sheets which the Controller of Examination has Peshawar 141gb

received from the Ayub Medical College of Dentistry.

According to the copy of the original sheets provided, the petitioner appeared under Roll No. 11693. Petitioner obtained 05 marks from internal examiner and 5 marks from external examiner and 12.5 marks in his OSCE.

Whereas in final internal assessment, he was awarded zero marks. The net calculation of the total marks is duly

reflected in his detailed marks certificate of BDS 2 Professional Supplementary Examination Arguments heard and record perused.

The record is veiy straight and clear.

According to his result of second professional supplementary examination, 2016, petitioner has obtained total 22 marks in oral and practical examination. The respondent University has provided the breakup of the marks awarded to the petitioner received from Ayub Medical. College of Dentistry, where the petitioner is getting his education.

Petitioner does not dispute the marks

awarded to him in his viva and OSPE, however, he disputes his marks awarded to him in his internal assessment. The Controller of Examination of the EXAMiNER respondent University has placed on file the final assessment total marks sheets wherein marks awarded to CourtABench I

each student has been provided by Ayub Medical College of Dentistry. The said sheet clearly shows that the petitioner has been awarded zero marks in final internal

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assessment by his own College. The subsequent letter issued by the head of department wherein it has been mentioned that in internal assessment, the petitioner was awarded 3 marks, is an afterthought and has been issued

after declaration of the result. This letter cannot be believed on two ground, firstly that internal examination rules of the respondents does not allow the same. For the ready reference the said rules are reproduced below:- "Internal Evaluation and Regulations:

V. Awards of internal assessment in all the subjects of all the candidates shall be submitted to the Controller of Examination along with Admission Forms for the annual examination. Internal assessment received after commencement of/he final examination shall not be accepted."

And secondly, if such practice is allowed, it will open the flood gate to the students who could not obtain qualU3"ing marks at the time of their internal assessment and after declaration of result, they either maneuver with the head of department or influence the head of department to make 0 to be— Tru EXAMINER good the deficiency. Even otherwise, if this practice is 05 DEC it will lead to indiscipline in our academic institutes.

8.The educational institutes like the

respondent are government under rules and regulations and the persons sitting in the helm of affairs of the institute/university are custodian of the rights and privileges of all the students for whom these universities are established. They are sole judge to interpret and apply the rules keeping in view the situation as arises befor

them. Unless they act arbitrarily, whimsically, in disregard of rules and with malafide, the High Court normally does not interfere in their working while exercising constitutional jurisdiction. In "Muhammad Ilyas Vs.

Baha-ud-Din Zakariya University Multan, 2005 SCMR 961" the august Supreme Court of Pakistan has held:-

"We have heard the learned counsel and have also ! gone through the relevant regulation. At the out.set it may be noted that as far as the rules/regulations framed by the University Authorities for the purpose of conductive/regularizing examination etc. of University are concerned these are required to be interpreted by the University Authorities itself and Courts should avoid to Cert, e"' be True Copy interpret the same unless a case of grave

INER

injustice is not made out otheise it would 0 5DEC 2QJ7v become c4fjicuit for University // administration to run its internal affairs tt relating to examination, etc."

The aforementioned view was re-affirmed in "University of Health and Science Lahore Vs. Arsalan All & another, 2016 SCMR 134"

9.With these observations, the petition in hand stands disposed of accordingly.

Announced:

JUDGE

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