SHAHID WAHEED, MEMBER:- This appeal under section 5 of The Punjab Subordinate Judiciary Service Tribunal Act, 1991 is directed against Notification No.112/RHC/CJJ dated 12.5.2011 whereby the appellant, Qurban Ali, was discharged from service under section 5(3) of The Punjab Civil Servants Act, 1974.
2. Prayer in this appeal is to set aside Notification No.112/RHC/CJJ dated 12.5.2011; that the appellant may be reinstated in service; and, that the appellant may be awarded grace marks or in the alternate thereof a special chance be granted for qualifying Paper V (Accounts).
3. This appeal has arisen in the background that on 23.5.2007 the appellant was appointed as Civil Judge-cum-Judicial Magistrate. According to The Punjab Civil Judges Departmental Examination Rules, 1991, the appellant was required to qualify the departmental examination in four attempts by securing sixty six percent of the maximum marks allocated to each subject for his confirmation in service. The appellant in his three successive attempts qualified all the papers except Paper-V (Accounts). In order to qualify Paper V (Accounts), the appellant, availing his 4th chance, appeared in the 27th departmental examination of Civil Judge-cum-Judicial Magistrate. The appellant secured 73/120 marks in the said paper. He was, therefore, declared fail in the examination. The respondent vide letter No.351/RHC/C-I dated 20.5.2011 informed the appellant about detail of marks obtained by him in Paper-V (Accounts). The said details are as below: {{ TABLE }} Attempt Marks obtained in Paper V 1st Attempt (24th Departmental Examination) 58 2nd Attempt (25th Departmental Examination) 59 3nd Attempt (26th Departmental Examination) 60 4nd Attempt (27th Departmental Examination) 73 {{ TABLE }}
4. The appellant vide letter No.320/Ahlmad dated 31.3.2011 made a request before the respondent for grant of special chance to appear in Paper-V (Accounts) of departmental examination of Civil Judges-cum-Judicial Magistrate. This application was rejected and resultantly vide impugned Notification No.112/RHC/CJJ dated 12.5.2011 the appellant was discharged from service under section 5 (3) of The Punjab Civil Servants Act, 1974. The appellant submitted a petition and sought review of the said Notification. Getting no response of the review petition, the appellant has filed instant appeal before this Tribunal.
5. It is contended on behalf of the appellant that maximum marks allocated to Paper V (Accounts) are 120; that according to letter No.351/RHC/C-I dated 20.5.2011 the appellant secured 73 marks in Paper-V (Accounts) whereas the qualifying remarks were 79; that the appellant was short by 6 marks; that under Rule 9 of The Punjab Civil Judges Departmental Examination Rules, 1991 the Committee could award 5% marks i.e 6 marks as grace marks in the Paper V; that the appellant's request for award of grace marks has been declined without expressing any reason; that action of the respondent is discriminatory; and, that non-granting of grace marks is a clear violation of principle laid down in the cases of Muhammad Saleem v Punjab Public Service Commission and another (1985 CLC 1544), S. Maruf Ahmad Ali, Advocate v Punjab Public Service Commission, Lahore and another (1986 PLC (C.S) 335), Punjab Public Service Commission and another v S. Maruf Ahmad Ali (PLD 1988 SC 356), Subah Sadiq Khan v Punjab Public Service Commission and others (1989 MLD 3859) Mst. Farah Naz v Board of Intermediate and Secondary Education, Multan through its Chairman and another (1995 CLC 1150), Rao Muhammad Ashraf Khan v Government of Punjab through Secretary Education, Lahore and 2 others (1997 CLC 43), Government of Pakistan through Collectorate of Customs and another v Amar Mehmood (1999 SCMR 2268), Zahoor Hussain v Director Education (Schools) Directorate of Education (Schools) Lahore Division, Lahore and 2 others (2002 YLR 1544) and Bahauddin Zakriya University through Vice Chancellor and another v Muhammad Waseem Khan (2005 YLR 1197).
6. After hearing above noted arguments we asked the learned counsel for the appellant as to whether the request for grant of grace marks was made in review petition. He replied in the affirmative and drew our attention towards Para 4 of the said review petition. Perusal of said para corroborates the assertions of the appellant's counsel.
7. We confronted the learned counsel for the respondent with the arguments canvassed by the appellant's counsel; and, Rule 9 of the Punjab Civil Judges Departmental Examination Rules, 1991 and asked as to whether the said review petition has been decided by the competent authority. In response, learned counsel for the respondent has placed on record a letter No.189/RHC/C-I dated 5.3.2012 whereby the review petition filed by the appellant has been rejected. The said letter reads as under: "I am directed to refer to the subject cited above and to state that the Hon'ble Administration Committee has been pleased to consider and decline your review petition in its meeting held on 18.02.2012."
In the above cited letter the Competent Authority has not expressed any reason for declining to award grace marks to the appellant. We, therefore, asked the learned counsel for the respondent as to what were the grounds on the basis of which the grace marks were not awarded to the appellant. Respondent's counsel submits that no such ground has been expressed in the letter No.189/RHC/C-I dated 5.3.2012; and, that in the 27th departmental examination of Civil Judges, the Committee or the Competent Authority as a policy did not award grace marks to any candidate.
8. In the present case the appellant was discharged from service under section 5 (3) of The Punjab Civil Servants Act, 1974 as he was declared fail in the departmental examination of Civil Judges. The appellant was declared fail in the departmental examination for not qualifying Paper V (Accounts).
In the said paper the appellant secured 73 marks whereas the qualifying marks were 79. It is the case of the appellant that he was entitled to get 6 grace marks which were illegally withheld by the Committee; and, that after grant of grace marks he could not be declared fail in the departmental examination. Thus the controversy involved in this case is as to whether the appellant was entitled to get grace marks. The resolution of said controversy hinges upon interpretation of Rule 9 of The Punjab Civil Judges Departmental Examination Rules, 1991which reads as under: "9. Grace marks. The Committee may award five percent marks as grace marks in any paper in any examination."
The question for our decision is whether the word "may" in the said rule confers the discretion on the Committee, or does the word "may" really mean "shall" or "must". There is no doubt that the word "may" generally does not mean "must" or "shall". But it is well settled that the word "may" is capable of meaning "must" or "shall" in the light of the context. It is also clear that where a discretion is conferred upon a public authority couple with an obligation, the word "may" which denotes discretion should be construed to mean a command. In Julis v Bishop of Oxford (1880) 5 AC 214 it was observed by Cairns L.C at pages 222-223 that " the words "it shall be lawful" conferred a faculty or power, and they did not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the persons for whose benefits the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so". Lord Blackburn observed in the same case at pages 244-245 that the enabling words give a power which prima facie might be exercised or not, but the purpose of effectuating a right there may be a duty cast upon the donee of the power to exercise it for the benefit of whose who have that right when required on their behalf. The above stated principle has been approved by the Hon'ble Supreme Court of Pakistan in the case of Messrs Gadoon Textile Mills and 814 others v WAPDA and others (1997 SCMR 641) wherein at page 827 it was observed "in such cases the power is coupled with a duty and the public authority in whom it resides must exercise it for the benefit of those identified by the power-conferring provisions".
In the case of Muhammad Sadiq and others v University of Sindh and another (PLD 1996 S.C 182) the word "may" has been defined in the following terms: "May' involves a choice and 'shall' an order. This is the customary usage of these terms of art when they appear in a statute. Even an enabling word like 'may' may become mandatory, when the object of the power is to effectuate a legal right. (See Reg v Home Secretary (1995)2 V&R 464, 484 and (1879-80) 5 AC 214-244)
10. The connotation of word "may" also came up for consideration in the case of Abu Bakar Siddique and others v Collector of Customs, Lahore and others (2006 SCMR 705) wherein it was held as follows: "It is well-settled that word 'may' is discretionary and an enabling word and unless the subject- matter shows that the exercise of power given by the provision using the word 'may' was intended to be imperative for the person to whom the power is given, it might not put him under an obligation to necessarily exercise such power but if it is capable of being construed as referring to statutory duty, it will not be entirely for such person to exercise or not to exercise the power given to him under the law. The use of word 'may' in the statute in the plain meanings is to give discretion to the public authorities to act in their option in the manner in which such authorities deem proper but if the public authorities are authorized to discharge their functions in their option in a positive sense, the word 'may' used in the provision would be suggestive of conveying the intention of legislature of imposing an obligation. The word 'may' usually and generally does not mean 'must' or 'shall' but it is always capable of meaning 'must' if the discretionary power is conferred upon a public authority with an obligation under the law. The word 'may' is not always used in the statute with the intention and purpose to give uncontrolled powers to an authority rather offenly it is used to maintain the status of the authority on whom the discretionary power is conferred as an obligation and thus, the legislative expression in the permissive form, sometimes is construed mandatory. It is, however, only in exceptional circumstances in which a power is conferred on a person by saying that he may do a certain thing in his discretion but from the indication of the relevant provisions and the nature of the duty to be done, it appears that exercise of power is obligatory. This is an accepted principle of law that in a case in which the statute authorizes a person for exercise of discretion to advance the cause of justice, the power is not merely optional but it is the duty of such person to act in the manner it is intended."
11. In the light of aforesaid precedents it may be conveniently concluded that the word "may" in Rule 9 of the Punjab Civil Judges Departmental Examination Rules, 1991 has been used out of deference to the high status of the Committee and it connotes merely an enabling or a permissive power in the sense of the usual phrase "it shall be lawful". It is also capable of being construed as referring to compellable duty or a ministerial power in which the law prescribes the function to be performed by concerned authority or Committee in somewhat definite and specific terms, leaving no choice to it and leaving nothing to its discretion or judgment. The function to grant grace marks under Rule 9 of The Punjab Civil Judges Departmental Examination Rules, 1991 involves no investigation into disputed facts; the said rule imposes a simple and definite duty on the Committee to award grace marks in any paper in any examination to a candidate who fails to qualify the examination for want of five percent marks so as to enable him just to qualify the examination. It is not open to the Committee to decide as to whether a candidate is entitled to get grace marks or not. There is no discretion of the Committee in the matter if a candidate is failing in the examination by short of 6 marks. In the present case the appellant secured 73 marks in Paper V (Accounts) whereas the qualifying marks were 79. The Committee could not withhold the grace marks as envisaged in Rule 9 (Supra). It was the compellable duty or the ministerial power of the Committee to grant 6 grace marks to the appellant. The decision for not awarding the grace marks to the appellant was not valid, and, therefore, he could not be declared fail in Paper V (Accounts) of the Civil Judges Departmental Examination.
12. It has been argued by the respondent's counsel that instead of exercising power under Rule 9 of the Punjab Civil Judges Departmental Examination Rules,1991 for grant of grace marks the Committee or Competent Authority decided as a matter of policy that no grace marks would be allowed to any candidate. The said self-imposed restraint by the Committee or the Competent Authority on the exercise of its power under Rule 9 (supra) is invalid for the simple reason that when rules confer a power on the Committee, it is expected that it would decide each and every case on its own merits, and not fetter its discretion by adopting an inflexible standard to be followed by it uniformly in all cases. Even otherwise the said policy decision could not lawfully be made so long as the statutory rule making provision for the grant of grace marks is not omitted through amendment to be made by the competent authority.
13. In the light of above observations, this appeal is allowed Notification No.112/RHC/CJJ dated 12.5.2011 and letter No.189/RHC/C-I dated 5.3.2012 are hereby set aside. The respondent is directed to place the case of the appellant before the Hon'ble Administration Committee of the Lahore High Court for grant of grace marks in the light of Rule 9 of The Punjab Civil Judges Departmental Examination Rules, 1991 and to make orders for appellant's reinstatement into service.