Glaring flaws in Farah Hameed Dogar case verdict
The verdict does not address a host of mind-boggling questions
Islamabad, Jan 19: 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
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
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 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
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
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
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.
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
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.
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
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
(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
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
Educationists declare IHC decision 'murder of justice'
Islamabad: Renowned educationists of the country have opined that the permission
to re-assess papers of students would lead to the collapse of the whole
education system. They were of the view that re-assessment was not allowed in
any education system anywhere in the world and it would be a hard blow to the
already under pressure education system of our country.
educationist Dr Ali Sajid, who is also the former head of Management Sciences
National University of Science and Technology (NUST), the founder of Centre for
Advance Studies in Engineering, Islamabad, and former Consultant of the World
Bank said that a wrong precedent was being set to favour the daughter of a PCO
chief justice, which would have fatal effects on the education system.
He said that to him Islamabad High Court's decision in the Farah Dogar
case was the murder of justice. "The decision will open a Pandora's box of
re-assessment seekers, perhaps resulting in the collapse of examining bodies,"
said the educationist, adding: "The PCO court has not only favoured the daughter
of a judge but has done injustice to thousands of those students who had applied
for rechecking before 2008."
He said that he had been teaching students
of PhD and Masters and only re-counting was allowed but the IHC had imposed a
"58(2) b" on poor students as offspring of high and mighty would get protection
and would never fail while the poor would be subjected to so-called 'rules'.
He said that re-assessment was not allowed anywhere in the world as it
would lead to the collapse of the whole education system. Dr Ali said that it
was a relaxation for the privileged given by the court to the daughter of a
mighty, therefore, it would further deteriorate the education system. "The IHC's
decision is an illegal shortcut provided to the elite class to get their
wrongdoings legitimised," he said.
However, Essa Daudpota, a renowned
scholar and educationist, was of the view that re-assessment be allowed to all
the boards and universities as an error could be made while assessing papers of
students and one error made by an examiner makes a student suffer for his whole
However, he said, that in the Farah Hameed Dogar case,
re-assessment was illegal as only one girl had been given permission to get her
marks increased and that too up to the extent that made her eligible for
admission to a medical college. He said that if rules were made in such a way
that independent examiners were deputed to assess papers of students, it could
lead to purity in the checking system.
Qasim Jan, Vice-Chancellor of
Quaid-e-Azam University, one of the top most institutions in Pakistan, said that
while marking a paper of a student, the examiner can commit a mistake as he was
a human being and to err was human but allowing re-assessment would open a
floodgate of applications and it would be difficult for the boards to deal with
"Radically speaking, re-assessment would create
massive problems for the boards and would deteriorate the education system,"
said Qasim Jan adding: "Such permission would also amount to undue pressure on
examiners as even in normal circumstances, there is so much pressure."
said there might be some flaws in the current system, which is being followed in
the entire world but what is the guarantee that the new system would have fewer
flaws. He said the recounting of papers should be allowed to avoid counting
mistakes and only unchecked portion of papers be marked as per the prevalent
system or there was no need of re-assessment of papers as it may lead to the
collapse of the system.
Dr Nazir, a renowned scholar teaching in the
Quaid-e-Azam University, said that allowing re-assessment of papers would put
the integrity of a teacher at stake while everywhere in the world it was the
integrity of teachers which was respected.
He said that if educational
systems of the world were studied, only re-counting of marks was permitted and
rule of re-assessment was nowhere under the sun. He said that papers may be
re-assessed from independent assessors to ensure transparent marking but
re-assessment must not be allowed. "No one has enmity with any student, awarding
less marks to him or her," said the teache,r adding: "It is the integrity of
examiners that will be challenged if re-assessment was allowed."
Education system hits rock bottom
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
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.
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
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".
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. The News
"i just would like to pay attention towards this farah hameed dogar case and fight against so called parental love. We called here that journalism is independent, is it so..?? no, sometimes it just look like as one sided and intollerant. if they are creating otherness between Ex-chierf justice son arsalan and farah dogar. if its only the matter of system, then there are infinite examples of such happenings in the society.. where people are doing so.. no change wil be done..!! despite of this, it is still somehow digested if they only stand on her marks dispute, but in todays paper, a copy of farah`s examination notebook was established.now this is beyond the limits..and totally towards giving her mental stress and making her unable to continue her studies. whtever farah did, but not on a practical life level, nor any other institutiuon is affected because of her, its the only act what chief justice dogar did regarding her daughter, but wht Mr. Ex-chief justie did?? arsalan was illegally oppointed as grade 17 officer in healh deptt. and then furtherly had promoted to SP in FIA headquarters despite the protest organiztion`s DG. So.. where are the media publications against him now??? wht was he doing as SP in punjab police being realated to medical field?? without FPSC??? there is still alot if difference farah and arsalan`s case.. its the matter of giving additional marks ans that was the matter of illegal posting in federal institutions and wearing police uniform of punjab police..!! "
City, Country: Karachi, Pakistan
Post your comments