' TASSADUQ HUSSAIN JILLANI, J.---This judgment shall dispose of Civil Appeals Nos.749 of 2008 and 750 of 2008 as some of the issues raised in both the appeals are common and the impugned judgments were rendered by the same learned Judge.
2. Facts in Civil Appeal No,749 of 2008 briefly stated are that respondent No, 1 Zafar Maqbool along with others applied for posts of Provincial Management Service in the Combined Competitive Examination in terms of Punjab Public Service Commission's advertisement published in several newspapers calling for applications for the examination 2006. The academic qualification prescribed in terms of para 5 of the said advertisement and as provided in the Punjab Provincial Management Service Rules, 2004, was "Graduate (Second Division) from a recognized University".
Respondent cleared the written test as also the interview and was placed in the merit list. However, his application was rejected finally on the ground that he lacked the "prescribed qualification according to Commission's advertisement". This was challenged in a constitutional petition which was allowed by the learned Judge of the Lahore High Court as the learned Judge found that the eligibility condition of 2nd Division Bachelor Degree for Provincial Management Service Examination is unnecessary, unreasonable, discriminatory and therefore, void. The Court held as follows:-- "(a) The fixation of minimum qualification for any position is perfectly legal and justified. Its further classification in grades or divisions may also sound reasonable where a candidate is to be examined through interview only. Where however, a candidate is required to appear and pass written examination of specified subjects determined by the Commission, the condition of a higher grade in the minimum qualification is absolutely irrelevant. The fate of a young man having graduated in 3rd division though having a much better educational career in Matriculation and Intermediate cannot be permitted to be sealed on the whims of a Rule making authority. Since in our educational system written examinations are held on fixed days and mostly without a viva voce portion, faring of a candidate depends upon so many contingencies that an otherwise brilliant student may not be able to conduct himself better on account of bad health, shock or even bad weather condition on the day of examination.
(b) The comparable rule of Federal Public Service Commission where a person having done better in Master's degree is allowed to appear sounds more realistic and charitable. Obviously the purpose of holding competitive examinations is to induct best possible officers tested on the touchstone of written examination and viva-voce and not on the basis of their grades in degree/certificate awarding examinations.
(c) The Public Service Commissions and their members do consider the academic career of the candidates during viva voce to give credit for better performance in educational and professional examinations. That is perfectly justified. However, to stop a candidate at the threshold only on the basis of a lower grade in one of the many examinations that he took during his educational career amounts to discrimination. I am sure that the 3rd division graduates who appeared and cleared the competitive examinations before revision of the rules in 2004 are delivering as good as their other colleagues having first or second division graduate degrees. To re-categorize the basic educational qualifications for any competitive examination cannot be seen with appreciation. All the more so, when a candidate as in the case in hand had done better in his Master's degree examination."
3. Leave was granted by this Court in terms of the order dated 1-8-2008 in Civil Petition No,497-L of 2008 as under:-- "The contention advanced by Mr. Tahir Munir Malik, learned Additional Advocate-General, Punjab is whether a candidate obtaining 3rd class in graduation with a 2nd class master's degree would be eligible for applying for a post for which the minimum requirement is graduation in 2nd class and whether in doing so the High Court violated the provisions of Regulation 22 of the Punjab Public Service Commission Regulations, 2000 which have been made in exercise of the powers conferred on the Punjab Public Service Commission by section 10 of the Punjab Public Service Commission Ordinance, 1978. He further submitted that the impugned judgment of the High Court as also at variance with the pronouncement made by this Court in the case of Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Limited and 3 others (PLD 1993 SC 210) wherein this Court pronounced that once the Court finds that the Regulations/Rules framed under the statutory power are within the ambit of the relevant statute, it cannot sit in judgment over the wisdom effectiveness or otherwise of the policy laid down by the Regulation making body and it cannot declare Regulations to be ultra vires merely because the Court considered that the impugned Regulations would not serve the object and the purpose of the Act. In addition to the above, he submitted that the issue is of a prime importance and to resolve the same, a thorough examination of the rules/regulations and the Punjab Public Service Commission Ordinance, 1978 will have to be undertaken.
2. The issues involved required a thorough examination. Accordingly, leave is granted to consider, amongst others, the above issues."
4. In Civil Appeal No,750 of 2008 Muhammad Sarfraz (respondent No,4) and Hafiz Zeeshan Hafeez (respondent No, 5) were placed on the merit list having qualified the written test and the interview but their candidature was rejected on the ground that in terms of the Regulation No,39 of the Punjab Public Service Commission Regulations, 2000, they could avail only three chances to appear in the Provincial Management Combined Examination and since they had appeared for the 4th time, they could not compete with other candidates. However, the learned High Court allowed the constitutional petition and held that since in the Combined Competitive Examination for the post of Provincial Management Service, the nomenclature of the posts was different from the one's in which the respondents had appeared and availed the chances earlier on their availing of those chances could not be counted towards the chances available to the respondents in the Combined Competitive Examination held pursuant to the advertisement dated 28-5-2006.
5. Leave was granted by this Court in term of the order dated 1-8-2008 in Civil Petition No,498-L of 2008 as under:--- "The contention advanced by Mr. Tahir Munir Malik, learned Additional Advocate-General, Punjab submitted that the judgment of the Lahore High Court, Lahore, is violation of the provisions of regulation 39 framed under the Punjab Public Service Commission Regulations, 2000 in exercise of the powers conferred on it by section 10 of the Punjab Public Service Commission Ordinance, 1978 and as the regulations have statutory backing/sanction violation thereof would amount to violation of law rendering the judgment of the High Court as illegal. He further submitted that the High Court in exercise of its constitutional jurisdiction did not have the power to declare a policy decision to be in violation of the principles of natural justice and to hold that no constraints could be laid down by the Government for requiring the appearance of a candidate in examination for induction into civil service. Reliance has been placed by the learned Additional Advocate-General, Punjab in the case of Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Limited and 3 others (PLD 1993 SC 210) wherein this Court held that once the Court finds that the Regulations/Rules framed under the statutory power are within the ambit of the relevant statute, it cannot sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the Regulations making body and it cannot declare Regulations to be ultra vires merely because the Court considered that the impugned Regulations would not serve the object and the purpose of the Act. He further submitted that these issues cropped up for the first time before this Court and an authoritative decision would be helpful in guiding the line of action to be taken.
2. On consideration of the arguments advanced and the relevant provisions of law, the issue involved requires a thorough examination and an authoritative pronouncement is required thereupon. Accordingly, leave is granted to examine, amongst others, the above questions of law."
6. Learned Assistant Advocate-General assailing the judgment in Civil Appeal No,749 of 2008 submitted that the learned High Court has fell in error in holding that since the respondent had a second class, Masters Degree, his 3rd Division in Graduation could not be a bar; that Schedule 1 of the Punjab Provincial Management Service Rules, 2004, clearly prescribed Bachelor's 2nd Division qualification and any construction or interpretation, which is not in consonance with that cannot be sustained. He further added that the afore-referred Rules are based on Regulation No,22 of the Punjab Public Service Commission Regulations, 2000, as also section 10 of Punjab Public Service Commission Ordinance, 1978, and having the backing of law, the same cannot be said to be unjust or ultra vires. Further elaborating the sanction behind Punjab Provincial Management Service Rules, 2004, he added that these Rules were framed in terms of the Punjab Civil Servants Act, 1973. In support of the submissions made, learned counsel relied on a judgment of this Court reported at Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Limited and 3 others (PLD 1993 SC 210) and an unreported judgment passed in Civil Petition No,1478-L of 2009 and Human Rights Case No,6741-G of 2009 dated 24-11-2009. Making his submissions with regard to the judgment impugned in Civil Appeal No,750 of 2008, learned Law Officer submitted that the learned High Court has not correctly appreciated that the Combined competitive Examination held for filling the post of Provincial Management Service in terms of Punjab Provincial Management Service Rules, 2004, was a successor examination to the examinations held earlier on, the nature of the post was the same though their nomenclature was changed and therefore, the chances availed by the respondents in the earlier Combined Competitive Examination were to be counted to determine their eligibility to appear in the examination.
7. Learned counsel for the respondent No,1 in Civil Appeal No,749 of 2008, however. Defended the impugned judgment by submitting that the learned High Court not only took into account the 2nd Division obtained in Master's Degree by the respondent but also Rule 5(ii) of the Federal Public Service Commission Competitive Examination Rules for Competitive Examination (CSS) 2005 (dated 18-4-2005) and no exception could be taken to it. Regarding the impugned judgment in Civil Appeal No,750 of 2008, learned counsel submitted that both the respondents did appear in the Combined Competitive Examination held for various Provincial Management Services but their nomenclature being different, the three chances availed therein could not be counted towards the chances availed in the Combined Competitive Examination held pursuant to the Punjab Provincial Management Service Rules, 2004. He added that not only the nomenclature was distinct but even the qualifications prescribed and the powers of various officers of different posts were different.
Further added that earlier on the qualification prescribed was Graduation irrespective of the condition i,e, 2nd or 3rd or 1st class whereas in the current Combined Competitive Examination, which is subject matter of this appeal, the qualification prescribed is Bachelor 2nd division.
8. Having heard learned Law Officer and learned counsel for the respondents at some length, we find that admittedly in C.A. 749 of 2008 in terms of the advertisement published for the Combined Competitive Examination for the post of Provincial Management. Service, the qualification prescribed was "Graduation (Second Division) from a recognized university. It is not denied that the afore-referred, condition of qualification is in accord with the Punjab Provincial Management Service Rules, 2004, (dated 17-1-2004) wherein column 5 prescribes the qualification. These Rules were framed. In the exercise of the powers conferred to the Governor under section 23 of the Punjab Civil Servants Act, 1974. The eligibility of a candidate had to be determined in accord with the advertisement for the post, service rules governing the appointments and any amendment or instruction backed by law. The Regulation No,22 of the Punjab Public Service Commission Regulations, 2000, mandates as follows:- "22. Eligibility of a candidate shall be determined in accordance with the advertisement for the post, service rules governing appointments to the relevant post and such other ancillary instructions issued by the Government and/or the Commission from time to time. For this purpose, the age, qualifications, experience and other credentials etc., of the candidates existing on or up to the closing date fixed for such posts as advertised, shall be taken into account. No relaxation in this regard shall be allowed."
9. The observation of the High Court to the effect that the Rules framed by the Federal Public Service Commission are para materia to the Rules governing the appointments of Provincial Management Service, we may observe with respect, is not tenable as those are distinct. Rule 5(ii) of the former Rules specifically permits 2nd class Master's Degree holder to be eligible even, if he is a 3rd Division in Bachelor's Degree whereas in the Rules/Regulations for the posts of Provincial Management Service, there is no provision of a similar kind. In the afore-referred circumstances, the impugned judgment cannot be sustained.
10. So far as the impugned judgment in C.A. 750 of 2008 is concerned, we have given anxious consideration to the argument of respondents' learned counsel that since the nomenclature of the posts for which the Combined Competitive Examinations were held, which are subject matter of this appeal are distinct, the chances availed by the respondents in the Combined Competitive Examination earlier on should not be counted, has not been found by us either to be in line with the intent of the law makers or backed by law. Admittedly, the respondents had appeared in the Combined Competitive Examinations thrice prior to the examinations held for the Combined Competitive Examination pursuant to the notification of change in nomenclature issued on 17-1- 2004. The advertisement was published in 2006 in accord with the said notification. To hold that since the name of the posts in the Combined Competitive Examinations held earlier on was different and therefore, those could not be counted against the respondents in the examination under consideration in these appeals, would be against the mandate of law reflected in Regulation No,39 of the Punjab Public Service Commission Regulations, 2000, which reads as follows:-- "39. All candidates (private or in-service) appearing in 'written examination' to be held by the Commission shall be allowed to avail of three chances only for each particular written examination irrespective of the type or categories of posts grouped in that examination, unless otherwise prescribed by the Government. This will be subject to the condition that candidates fulfil all other requirements of the rules. In case, age relaxation has been allowed, only one chance shall be given." (Emphasis is supplied)
11. Thus the afore-referred Regulation provides three chances, "irrespective- of the type or categories of posts grouped in that examination". It is the Combined Competitive Examination for the posts of Provincial Management Service which is the point of reference to count the chances availed and not the name of the post.
12. For what has been discussed above, we are of the view that the impugned judgments in both these appeals cannot be sustained. Consequently, these appeals are allowed and the impugned judgments are set aside and writ petitions are, dismissed with no order as to costs.