IHC says award of additional marks was correct: Farha Dogar case dismissed

[pkpatriotic]

IHC says award of additional marks was correct: Farha Dogar case dismissed
QAMAR UZ ZAMAN

ISLAMABAD (January 17 2009): The Islamabad High Court on Friday dismissed petitions against award of extra marks to Farah Hameed Dogar, daughter of Chief Justice Abdul Hameed Dogar, declaring the re-evaluation as an effective measure to stop arbitrariness of the examiner. "petitions are without merits and are thus dismissed," said Chief Justice Sardar Muhammad Aslam in a 14-page order.

The judgement said 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".

"To foster the principle of justice a wrong has to be remedied. In the absence of statutory provision, residuary power rests with the authority to undo manifest case of victimisation by the examiners. The view was taken by the Hon'ble Supreme Court in Sima 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 judgement added.

The verdict also said that the court after thoroughly examining the relevant record of Farah Dogar saying 'undeniably it is not the domain of this court,' including answer sheets reassessment of marks, the court has come to the conclusion that award of additional marks was correct.

The judgement also addressed the question regarding authority of the chairman to direct reassessment and said, "Regulations do not confer any power to the Chairman to direct reassessment/re-evaluation of any answer book but such a power do reside in him being the chief executive of the board."

The court also recommended the Ministry of Education for revamping the rules in order to overcome victimisation by the examiners saying: 'The Secretary Ministry of Education, controlling authority of the board, may see the possibility of bringing an amendment in the rules to provide a machinery and procedure for re-evaluation.'

Iftikhar Hussain Rajput and Advocate Azam Khan Sultanpuri, President Tehreek Falah-e-Pakistan filed petitions in the IHC and alleged that the CJ used undue influence of his position in having result of his daughter improved.

Former Deputy Attorney General Raja Abdur Rehman counsel for one of the respondents in the case hailed the court verdict. Talking to reporters at the high court, he said that the decision would pave way for those students who were not satisfied with the marking of their papers. He also congratulated the affected students. However, Azam Khan Sultanpuri rejected the decision and vowed to file an intra-court appeal.

 

[pkpatriotic]

Glaring flaws in Farah case verdict
By Ansar Abbasi
Sunday, January 18, 2009

ISLAMABAD: The Islamabad High Court (IHC) verdict in the Farah Hameed Dogar case, handed down on Friday, is full of flaws, discrepancies, inconsistencies and inaccuracies. The verdict does not address a host of mind-boggling questions.

A careful reading of the 14-page decision shows, on page 7, that the judge — 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 of the board examination.”

The ruling here is erroneous because even this partial quoting of Rule 1.5 does not endorse what the judge says. Instead the rule talks about a strict embargo on re-assessment or re-evaluation after the declaration of the result.

Rule 1.5 (a), as quoted in the verdict (just prior to the judge’s observation), 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 “re-assessment,” but only after the publication of the result. But the judge’s observation suggests as if re-assessment is allowed after declaration of the result.

The judgment simply omits Rule 1.5 (e), which, while explaining Rule 1.5 (a), reads, “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.”

Here it is clarified that, contrary to the understanding of the judge, the board rules in certain conditions allow the re-examination and revision of the answer sheets but only before the declaration of the result and as part of the examination process under Rule 7.6 and 1.3 (e) of the Examination Rules. This is the internal arrangement of the board, of which the candidates have always been unaware.

Coming to the second issue, the judge 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 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.”

Firstly, Section 11(4) as cited in the judgment binds the chairman to go by the provisions of the Act and the rules and regulations made thereunder, which clearly bar re-assessment/re-evaluation after announcement of the result.

What the judgment simply missed is the relevant provisions of the Act. Clause 8 of Chapter 4 of the First Regulation of the Schedule of the Act titled “Chairman’s power in cases of hardship,” says: “Notwithstanding anything to the contrary in the regulations and rules, if, in the opinion of the chairman, there is a case of real hardship due to causes beyond the control of a student or a candidate for an examination of the board, the chairman may pass such orders as he may deem necessary to relieve that hardship.

“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 means the chairman has no authority to pass any order that can change the result of a candidate. Interestingly, while the judge ruled that the chairman had such powers, the case file of Miss Farah Hameed Dogar clearly says 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.

Here the question arises if the chairman has exercised this authority in any case other than that of the daughter of the Chief Justice of Pakistan. Sources in the FBISE confirm that Miss Farah’s was the only case where her answer sheets were re-assessed.

The judge wrote he had “perused the record.” However, he simply omitted several facts like: 1) the chairman’s orders for re-assessment “in relaxation of rules;” 2) the judgment showed the rechecking application of Miss Dogar in four papers whereas she had applied for re-checking in six papers; 3) while referring to Miss Dogar’s application for re-checking, the verdict on page 8 reproduced the orders of the chairman: “I would like to see her answer books myself also.”

The judgment says: “On 21-08-2008, answer scripts of respondent No.4 (Miss Dogar) were submitted to the chairman, who ordered on 10-09-2008: “Please have the answer book of this candidate re-assessed.” However, the decision totally omits the fact that a re-checking committee — as provided for under the rules — was formed, which gave only one additional mark because of the re-counting and unanimously concluded that except one mark in Biology all other five papers were checked and found correct (CFC). Dissatisfied with the addition of just one mark, the chairman later sought re-evaluation.

While quoting past rulings, what the present decision plainly ignored was the fact that in all the cases, the board or university concerned refused re-assessment on applications from candidates, who consequently approached the superior courts for orders to the board or university for revaluation of their answer sheets. In none of the cases quoted in the decision, the board or university directly re-assessed any candidate as has been uniquely done in the case of Miss Farah Dogar.

The first case law - PLD 1992 S.C. 263 - does not issue any re-assessment order. The second case law - 1995 MLD 899 - pointed 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. Similarly, most of the case laws relied on in the IHC judgment either talk of the university system or high court decisions.

Except for one case law to be discussed later, most - if not all - become irrelevant either because they pertain to universities, where examiners tend to personally know the students whose answer sheets were marked by them or for the reason that the latest Supreme Court decisions have 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 the case laws referred to has directly ordered re-assessment but speak in general terms about framing of such rules. But none of the intermediate boards has framed such rules.

The latest SC ruling (CP No. 248/2002 handed down in 2004),- cited in the present decision, reads: “The power has 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.”

Even this judgment, firstly, pertains to a university and, secondly, it seeks the reversal of the deleted power of the vice-chancellor to order re-evaluation. On page 12, the IHC judgment - referring to an Indian court decision - talks of remedy for an aggrieved individual and says “the constitutional courts in Pakistan directed re-evaluation in cases of hardships and exceptional nature itself where the rule did not permit such an exercise... re-evaluation was thus considered an effective measure to stop the arbitrariness of the examiner.”

However, there is no mention of the fact that Miss Farah Dogar was one of more than 1,000 candidates who had applied to the board for legally allowed re-checking. But without any application moved for re-assessment, only Miss Farah Dogar’s case was taken up for re-evaluation despite a clear legal bar. Therefore, there is no explanation offered in the judgment as to how Miss Dogar’s case was that of severe hardship and different from the rest of the candidates.

On page 13, the judgment deals with re-produced answers to two parts of different questions in Physics II and Urdu papers of Miss Farah. The decision says: “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.’ The examiner crossed this question and awarded zero mark. Later on, he gave it one mark. On re-evaluation, another mark was added....” Not only the language of the student is simply atrocious, but the answer is patently wrong, according to an electrical engineer, associated with a government organisation.

The Urdu part of the reproduced answer is extremely interesting and shows the liberal marking of the one who re-assessed the paper. According to the judgment, in the Urdu paper, one mark was awarded for an answer to a question but on re-evaluation two marks were awarded.

(See the text of the reproduced answer in the attached scanned copy, as even a near translation in English is not possible and could be misleading.)

But the judge, referring to these reproduced parts of the answer sheets, ruled: “I do find some of the irregularities in other papers too.” The readers, only after going through the scanned copies of the reproduced parts, would be in a better position to decide if these were irregularities on the part of the examiner or those who re-assessed and increased Miss Dogar’s marks.

 

[pkpatriotic]

Education system hits rock bottom
By Tariq Butt
Sunday, January 18, 2009

ISLAMABAD: The Islamabad High Court (IHC) 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 can also affect the future of the children of the have-nots, deprived and underprivileged parents, no matter how brilliant they are and how better they perform in examinations.

The verdict, which would become conclusive only if the Supreme Court upholds it, could serve a serious blow to the education system where marks obtained by candidates in their intermediate papers determine their future entry or otherwise in the professional institutions where even one single mark more than the other competitor matters a lot.

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.

If a policeman protects a delinquent colleague, he is considered shielding a “paytee bhira” (brother from the same profession), he may be condoned, though very reluctantly, by one to some extent because he is not assigned the dispensation of justice.

If the IHC chief’s ruling was meant to bury the controversy once and for all as one of Farah Hameed Dogar’s lawyers said, it hasn’t subsided even slightly the storm, or washed away the mud flung over Supreme Court Chief Justice Abdul Hameed Dogar. Rather the hullabaloo has raged further with a vengeance.

If Justice Aslam, who is retiring in March this year, were elevated to the Supreme Court, his promotion would be taken by many as an alleged reward for trying to extricate Justice Dogar from a complex tangle by 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 in her FSc papers through unprecedented re-evaluation and re-marking. However, if the IHC chief, otherwise enjoying a good reputation, went home on reaching the superannuating age of 62, his present judgment might be interpreted as fair and just by those who have described it as the “death of justice” and “a black chapter in the judicial history”.

In his capacity as the chief justice of the apex court, Justice Dogar is to play a key role in the elevation of Justice Aslam to the Supreme Court. If his promotion materialises, it would be conveniently compared with the past appointment of Irshad Hasan Khan as Chief Election Commissioner (CEC) after his retirement as chief justice as it was always stated about it that 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.

Too optimistic were those who had their expectations hiked much after the IHC chief had refused to stay the proceedings in the National Assembly standing committee on education on the Farah Hameed Dogar case. Tormented by the refusal, a stay was secured from a single judge of the Supreme Court on Dec 5. It was all done by the government to save Justice Dogar from being constantly dragged in the controversy. However, the objective had not been achieved.

The IHC direction to the education secretary and the controlling authority of the Federal Board of Intermediate & Secondary Education (FBISE) to consider the possibility of bringing an amendment to the FBISE rules to provide a procedure for re-evaluation of papers would have been plausible and laudable had it been issued after striking down the unique raise in Farah’s marks. This would have been a perfect verdict that would have been widely hailed by the legal fraternity and other sections of the society. However, it is a fact that superior courts have been ruling in different cases that a certain illegality has been committed, which they are undoing but at the same time issue instructions to the concerned authority to frame rules or make laws for facilitation of the people.

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.

One would 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.

 

[Beskar]

Thank God! At least they'll get off this stupid Issue now. Recently when the Country was on the brink of a War, all these political Idiots used to gather up on Talk shows and discuss this issue to the core, without caring about the rest of the troubles which were MORE important at that time.

 

[asq]

WOW. what a way to solve a bad situation, In west if it is detrimental to the society as a whole, they will not allow this to happen and disallow the upgrading of the marks. Now as Pakpatriot said this will open the flood gates of misuse and abuse.

It should have been reversed realizing that it will damage our education system.

 

[pkpatriotic]

Rules do not allow reassessment: Bijarani
By Muhammad Ahmad Noorani
Tuesday, January 20, 2009

ISLAMABAD: There is no rule or provision for reassessment/remarking of papers after announcement of examination results under any circumstances and, if allowed, it will open a Pandora’s box which will damage the country’s education system, Federal Minister for Education Mir Hazar Khan Bijarani said on Monday.

“If there is any irregularity in the marking/assessment of the Farah Dogar’s papers, strict action under the rules will be taken against those responsible,” the education minister said during an exclusive chat with The News in the parliament house and, added, “But, for this we will have to wait till the record of Farah Dogar’s case, which is still in possession of the court, is returned to us.”

“Look, no one is above the law,” Bijarani maintained, adding, “but, for this we will have to examine the record of Farah Dogar’s case whether during the process of assessment/marking of Farah’s papers, she was given some extraordinary favour.”

“There should be no doubt that if some irregularity is found in marking of the papers we will take all possible measures against those who committed this act, but only after the record is returned to us,” Bijarani said in categorical words.

He was commenting on reports that Ms Farah was awarded two marks out of one in the Physics paper while two marks were awarded in the Urdu paper for a wrong answer. Bijarani was also told that during normal process of assessment/marking, an examiner awarded her zero mark at first, but during the same process she was given one mark for a wrong answer which clearly shows that even the normal process of marking/assessment was influenced. Bijarani reiterated that his ministry would not let any one do anything illegal and those found guilty would be punished under the law.

On the question of legality of reassessment, Bijarani said he was not saying this for the first time; he had said on many occasions that reassessment of papers is illegal and not allowed under any law, rules or regulations and under any circumstances. The minister said he will not comment on the Islamabad High Court (IHC) decision but he knows only one thing: that reassessment is not allowed under any law and under any circumstances whatsoever. He repeated that if allowed, reassessment would open a Pandora’s box.

It is interesting to mention here that Bijarani, while talking to this scribe in his chamber in the National Assembly on Dec 22, said his ministry would take strict action on the reassessment issue once the case was disposed of. In The News story published on Dec 23, Bijarani was quoted as saying, “You don’t know what we will do in Farah Hameed Dogar’s case. The whole nation will see when we take action.” Only time will tell when the education ministry takes the much-needed action to save the education system!