Ejaz Afzal Khan, C.J.--The petitioner through instant writ petition has challenged the vires of the provisions of syllabus of the Public Service Commission and has also asked for the issuance of an appropriate writ directing the respondents to reckon his marks in accordance with its schedule.
2. Petitioner present in Court, states that where the general knowledge despite being divided in three papers has been shown as one subject in the schedule of the compulsory subjects in the syllabus, the passing marks are to be reckoned on the basis of his aggregate. So is the case, he added, with political science, physics or chemistry etc., as it too, has been shown as one subject in the schedule of the optional subjects. He next submitted that since passing marks in compulsory as well as optional subjects in all other examinations held under the umbrella of the Provincial or Federal Public Service Commissions are reckoned on the basis of aggregate, he cannot be dealt with a different yardstick, therefore, the provisions in the syllabus being discriminatory and violative of equality clause cannot be maintained.
3. As against that, the learned AAG appearing on behalf of the respondents contended that though general knowledge has been shown as one subject with three papers but the candidates are required to secure passing marks in each paper. So is the case, he added, with political science, physics or any other subject in the schedule of the optional subjects. The learned AAG next contended that though some of the features of this examination are different from the others but it cannot be considered as discriminatory or violative of the Constitutional provisions because it is based on intelligible differentia, if seen in the light of the nature of the post.
4. We have gone through the record and the syllabus carefully and have also given a serious thought to the arguments addressed by either of the side.
5. Before we discuss the merits of the case, it would be worthwhile to refer to the relevant schedules of the compulsory as well as optional subjects which are drawn as below:-- COMPULSORY SUBJECTS Sr.
No,Subject Maximum Marks 1 English (Precise & Composition100 2 English Essay 100 3 General Knowledge a. Current Affairs100 b. Every day Science100 c. Pakistan Affairs100 300 4 Islamiat 100 5 Viva Voce 300 Total 900 Qualifying marks in the aggregate of written papers:600 Qualifying Marks in the Viva Voce:100 OPTIONAL SUBJECTS The candidates are required to select optional subjects carrying a total of 600 marks, but not more than 200 marks from a single group (The grouping of optional subjects are as under): Rules Subject No,Subjects Marks Note: Business 5 Accountancy & 200 Administration 6 Auditing Cannot be opted7 Economics 200 in combination 8 Business with Public Administration 100 Administration Public Group 1 Administration 100 Group 2 9 Political Science 200 10 Agriculture 100 11 Forestry 100 12 Sociology 100 13 Journalism 100 Group 3 14 Pure Mathematics200 15 Applied 16 Mathematics 200 17 Computer Science 100 Statistics 100 Group 4 18 Physics 200 19 Geology 200 20 Geography 200 21 Chemistry 200 22 Botany 200 23Zoology 200 Group 5 24Islamic History & 25Culture 200 26History of Pakistan 27& India 200 28British History 200 European History 200 History of the USA 100 Note: International 29Law 200 Law cannot be 30Constitutional opted in 31Law 100 combination with 32Mercantile Law 100 International 33Muslim Law & Relations: 34Jurisprudence 100 Group 6 International Law 100 International Relations 100 Group 7 35Philosophy 200 36Psychology including Experimental Psychology 200 Group 8 37English Literature 200 38Persian 200 39Arabic 200 40Pushto 100 41Urdu 200
6. A fleeting glance at the schedule of the compulsory subjects would reveal that general knowledge has been shown as one subject despite being divided in three papers. Similarly political science, physics or chemistry etc. has been shown as one subject in the schedule of optional subjects despite being divided in two papers. Once it is not disputed that general knowledge is one subject and so is political science, physic or chemistry etc., the passing marks are to be reckoned on the basis of aggregate as is done in the examination of the Federal Public Service Commission for Civil Superior Service. The provision in the syllabus providing a different yardstick for reckoning the passing marks would be clearly discriminatory and violative of the Constitutional provisions ensuring equality before the law. Though it was submitted by the learned AAG that the mode of marking in the examination under discussion is based on intelligible differentia. But how so stern a standard for marking and reckoning the marks can be laid for the appointment in the management services, when the standard of marking and reckoning of marks is not so stern in the other examinations in general and those of C.S.S. in particular. It is quite strange that in one, assessm ent of merit is made on the basis of aggregate in two or more papers of the subject, while in the other assessm ent of merit is made on the basis of individual performance in each paper. In one set of cases the candidates deficient up to five marks succeed with the grant of grace marks while in the other, the candidates similarly placed cannot get even one grace mark. Uniformity in the mode of marking would be a need of the day, when it is also emphasized even in the examinations of Boards and Universities. Lack of uniformity is an unmistakable indication of tyranny. The more tyrant the ruler, the more numerous the laws, is too known an adage to be reiterated. Even today many candidates taking examination under Public Service Commission for the appointment of Judicial Officers were declared successful by this Court with the grant of five grace marks, while the entitlement of the others to the same concession, though, in another examination, is opposed. Yes classification is permissible, if it is based on intelligible differentia and has nexus with the purpose sought to be achieved. But what is the purpose of this classification and what nexus it has therewith and how would it be achieved are the questions which have not been answered by any body who is behind framing the provision in question. Whether change in the mode of marking was okayed by the Governor as is required under the relevant rules is yet another question which, too, has gone unattended.
7. Let us make it clear that people by and large do not know about the niceties. They want alike treatment of a likes in the absence of any palpable difference. They want to know how and why two examinations held under the same roof have different modes and manners for assessing merit.
Intention behind changing the mode and manner of marking may be very pious but when it gives rise to heart burning and a sense of deprivation, it cannot be sustained. Who does not know that transparency in such examinations is highly desirable? It cannot thus be confused and confounded in the grooves of niceties. The fact is that it admits of no niceties. As justice is not only to be done but to be manifestly seen to be done, so would be the case with transparency in the examinations and their results. When this being the case, we are constrained to hold that the petitioner passing compulsory and optional subjects in aggregate cannot be refused viva voce test and that the provision requiring passing marks in each paper of the subject being discriminatory and violative of the equality clause cannot be sustained.
8. For the reasons discussed above, this writ petition is allowed in terms of prayer with the direction to the respondents to bring about uniformity in the mode and manner of marking in the examination held under their supervision and excise the provisions leading to discrimination.