KARACHI, May 7: The Sindh High Court has observed that it is about time that appropriate measures are taken to preserve public records and make them, as far as possible, accessible to the public.

Such measures would help in ensuring that public power is exercised honestly, fairly and in public interest and also create a certain amount of confidence in the credibility of institutions.

This was held by a division bench, comprising Justice Sabihuddin Ahmed and Justice Ali Aslam Jaferi, while giving reasons for allowing petitions of Dr Khurshid Anwar and Dr Mohammed Ali Khan, who were presented by Khalid Jawed Khan, advocate.

The petitioners had appeared in the Diploma in Child Health examination conducted by the University of Karachi (respondent No 1) in 2000, and out of total marks of 200 in the theory papers had secured 182 and 174 marks, respectively. However, they were also required to pass a clinical and viva-voce exam of 200 marks, in which they were required to obtain a minimum of 50% marks. Both the petitioners were declared to have failed the viva-voce exam.

The petitioners alleged they had performed reasonably well in the viva-voce exams conducted by different committees of examiners who appeared to be satisfied with their performance.

Nevertheless, on account of personal bias the respondent No 3, who was a director of the National Institute of Child Health, due to failure on the part of the petitioners to support her in an election of the Pakistan Paediatric Association, manipulated the result and failed them. The allegations were denied by the respondents.

The court directed the controller examination of the said university (respondent No 2) and the director of the NICH to place before it the record of the individual marks awarded by each of the examiner in the viva-voce exam. But the respondent No 2 informed the court that no such record had been communicated to him by the examiners. He had placed before the court the consolidated marks, which appeared to indicate that both the petitioners had obtained 92 out of 200 marks in the viva-voce exam and did not fulfil the minimum requirement of 50% marks.

When the order of the court was communicated to the respondent No 3, she returned the same with the endorsement “as per rules we do not preserve individual marks.”

The petitioners however moved an application (CMA-1061/2002) along with copies of the transcripts signed by individual examiners as well as the final tabulation sheet of the viva-voce exam were enclosed.

Notice of the application was given to all the respondents and no counter- affidavit had been filed. N. K. Jatoi, counsel for the respondent No 3, however without disputing the contents of the documents, objected to their being taken into consideration on the ground of not having been legally obtained.

The court, in its judgment, held that it could not uphold this contention in view of the clear pronouncement of the Supreme Court in Bisvil Spinners (Pvt) Ltd Vs Pakistan (PLD 1992 SC 96).

The judgment also referred to an inquiry which was instituted by the respondent university in which the petitioners, the examiners and the respondent No 3 appeared. The respondent No 3 stated that she had not examined either of the petitioners, and the other examiners stated that they did not remember the marks awarded to any candidate. As such there was no practical result from the aforesaid inquiry.

The judgment also records that the court was informed under the rules that the viva-voce exam consisted of three components, ie, a long case carrying 75 marks, two short cases carrying 75 marks and a table viva carrying 50 marks.

From the documents produced before the court it appeared that examiners, for reasons best known to them, decided to fix 50 marks for the long case and 50 marks for the two short cases, thus reducing the total number of marks to 150. At the consolidation of the results 25% marks were added to the score of each candidate so as to determine his result on the basis of 200 total marks.

“It seems that Dr Afroze Ramzan awarded 30 out of 50 marks to the petitioner No 1 for the long case. Professor Inkesar Ali gave him 19 marks for the two short cases and Dr Iqtedar Ali Khan awarded him 35 marks in the table viva. Thus his total marks added up to 84 out of 150. As regards the petitioner No 2 he was awarded 30 marks for the long case by Dr Shakeel Rizvi, 15 marks by Prof Inkesar Ali for the two short cases and 30 marks by Dr Iqtedar Khan in the table viva. His total score amounts to 75, nevertheless what was disturbing to note was that the consolidated sheet after having recorded the total marks obtained by each candidate correctly, showed that they had been reduced from 84 and 75, respectively, to 69 each.

Counsel Jatoi, representing the respondent No 3, conceded that the total marks actually obtained had indeed been reduced while consolidating the results. He had, nevertheless, attempted to justify this on the ground that the examiners believed that since the candidates were being awarded diplomas as specialists in the field of medicine dealing with human lives, they should perform reasonably well in all aspects of the viva-voce exam.

Since both the petitioners had performed poorly in the short cases’ exam, it was considered expedient to reduce their total marks from what they had actually obtained so as to ensure that they could not qualify the exam.

But the court found such explanation entirely untenable. “Indeed if such was the object, it could have been conveniently achieved by providing that a candidate should obtain a certain minimum percentage of marks in each component or sub-category of the viva-voce exam. Nevertheless, when the rules require that a candidate was required to secure a minimum percentage of total marks in the consolidated viva-voce exam, we failed to see how the respondent No 3 or any other person could arrogate to himself the right to tamper with the results so as to fail a person who had acquired the number of marks required for passing the same,” the bench in its judgment observed.

“While we have not been able to find any instance where a candidate having otherwise failed was declared to have passed on account of grace marks, the fact remains that there was no justification to declare the petitioners failed despite their having obtained the qualifying marks.

“Nevertheless, we are perturbed by another aspect of the matter. Had the respondents acted in good faith they ought to have placed the result sheet in Court when they were called upon to do so and explained their point of view. At that stage, an evasive plea was taken to the effect that such records were not maintained,” the bench held.

“It is important to emphasize that a great deal of arbitrariness, which is absolutely forbidden by law in the exercise of public power, is being practised under the cloak of secrecy. Such practices only erode the confidence of the people in public institutions.