' MUSHIR ALAM, J.---Instant Petition for leave to appeal arises out of judgment dated 28.6.2016 passed by learned Bench of the High Court of Sindh, Circuit Court Larkana (in C.P No, D-438 of 2016), whereby Sindh Public Service Commission was directed to award grace marks to the respondent therein to qualify for the interview.
2. Facts in brief appear to be that the respondent appeared in Sindh Public Service Commission Combined Competitive Examination (CCE) 2013 held on 2.7.2013. He being one of the successful candidate, was called to appear in the written part of the CCE, 2013 examination, held from 7.4.2015 to 23.4.2015. In the examination held, only 664 candidates qualified for viva-voce/interview. The respondent though obtained aggregate qualifying marks failed by one mark in one of the compulsory subject as per prescribed qualifying criteria, thus disqualified and declared fail, which was challenged through Constitution Petition.
3. Learned Bench of the High Court in consideration of the fact that in past the Sindh Public Service Commission had awarded grace marks to the "deserving candidates", it therefore, held that the respondent being a deserving candidate, should have been allowed grace marks in order to qualify him for the purposes of viva-voce/interview. Learned Bench further directed that the 'Regulations' in terms of section 11 of the Sindh Public Service Commission Act, 1990 (SPCSC, 1990) also be framed within a period of 04 months from the date of judgment thereof.
4. Mr. Adnan Karim, learned Additional Advocate General, Sindh contended that the learned Bench was persuaded by the judgment rendered in the cases reported as follows:- ' Muhammad Saleem v. Punjab Public Service Commission and another (1985 CLC 1544)
' Punjab Public Service Commission and another v. S. Maruf Ahmed Ali (PLD 1988 Supreme Court 356)
' Subah Sadiq Khan v. Punjab Public Service Commission and others (1989 MLD 3859)
' Sohail Ahmad Pathan v. Sindh Public Service Commission and another (1996 PLC (C.S.) 1004)
Un-reported judgment of Division Bench, Sindh High Court, Sukkur Bench in C.P. No,D-141/1998 Shoukat Hussain v. Province of Sindh and others), authored by my lord Mr. Justice Anwar Zaheer Jamli, while sitting with Justice Syed Deedar Hussain Shah, as they were Judges of this Court then.
' Additionally, it was argued that the learned Bench erred in relying on unamended West Pakistan Civil Service (Executive Branch) Rules, 1964. (Executive Branch Rules, 1964) It was urged that in all the cases noted above and in terms of the Rules, 1964 as then in vogue, power vested in the Sindh Public Service Commission, (SPSC) being the competent authority, to allow 05 grace marks to the deserving candidate, which power was done away through amending Notification dated 2nd February, 1999 issued by the Government of Sindh, Services and General Administration Department, thence from practice of extending grace marks by the SPSC has been discontinued.
He further points out that out of 3375 only 664 candidates qualified for the examination and out of the 219 candidates who failed, 58 candidates failed by 01 mark, 93 failed by 02 marks and 68 failed by 03 marks and none of the candidate was extended any grace marks. Therefore, the petitioner cannot claim any discrimination in terms of Article 25 of the Constitution. It was pointed out that in all the cases relied upon by the learned bench, reliance was placed on West Pakistan Civil Service (Judicial Branch) Rules, 1962, (Judicial Branch Rules, 1Q62) which specifically authorize competent authority to grant "05 grace marks,... To really deserving candidates in one or two papers", Thus learned Bench erred in relying upon provisions of Rules, which are otherwise not attracted and or applicable in case in hand. It is argued that the learned Bench also observed that no regulations for the conduct of examination are in the field, and directed, same be framed which is contrary to facts: he has drawn our attention to Recruitment Management Regulation, 2006, (RMR, 2006), to urge that as per RMR, 2006, SPSC is not vested with any authority to grant any grace marks. It was pointed out that as per rules ibid a candidate is considered fail if he fails in any one subject irrespective of him securing higher aggregate marks. Furthermore, the Procedure, Syllabus and requirements for admission to the CCE exams specifically notified in bold letters that "no grace marks shall be allowed to any candidate". It is stated at bar that there were 219 candidates who failed by 01 to 03 marks in one of the compulsory subject "Essay and Sindhi" and none of the candidate who failed even by one mark were extended any grace marks. It is stated that since the issue of incompetence in civil service is serious matter therefore, any interference in observance of strict merit will open up Pandora's Box for future examinations, which will adversely affect the meritorious appointment. It is stated that Court cannot read something extraneous, which has since been specifically deleted, that to without being questioned directly by the respondent herein.
5. Mr. Athar Abbas Solangi, learned ASC appearing for the respondent supported the impugned judgment. According to him the respondent was short of only one mark and in all the cases relied upon by the learned Bench in the High Court, have duly considered the concession to deserving candidates. Mr. Solangi, learned ASC for the Respondent was specifically confronted with the cases referred to above, wherein Court considered the Executive Branch Rules 1964, which inter alia provided for extending such concession, which have since been amended and such power to give grace marks are no more available to SPSC. Regulation No,0743 of RMR, 2006 specifically prohibits award of grace marks. He was unable to point out or give instance where any of the candidate was granted grace marks by the SPSC after the Notification dated 2nd February, 1999 nor, he was able to demonstrate that any of the 58 candidate who failed by "one" marks was extended concession or relaxation by even 'one' marks.
6. Mr. Adnan Karim, learned Addl. Advocate General, Sindh appearing for the petitioners on instructions stated that since the deletion of provision vesting SPSC with authority to award 5 grace marks in terms of West Pakistan Public Civil Service Commission (Executive Branch) Rules, 1964, no candidate has been awarded grace marks.
7. It case Muhammad Saleem v. Punjab Public Service Commission and another (1985 CLC 1544)
(Lahore), pursuant to policy decision, candidate was declined grace marks the Court in consideration of fact that policy decision would not over ride statutory provisions of West Pakistan Civil Service (Judicial Branch) Rules, 1962 as amended on 19th October, 1972 which vested the Punjab Public Service Commission, authority to give "05 grace marks to really deserving candidates" directed the Commission to grant grace marks in the light of relevant rules. In the case of Sohail Ahmad Pathan v, Sindh Public Service Commission and another (1996 PLC (C. S.) 1004) the Court interpreted appendix 8 to Rule 5(1) of West Pakistan Civil Service (Executive Branch) Rules, 1964. The condition in the appendix provided for discretion to award 5 grace marks to the deserving candidate; cited case was decided on 2nd January, 1996; when the un-amended Executive Branch Rules of 1964, did vested the SPSC power to extend concession of "05 grace marks", to the deserving candidates. In the case of Punjab Public Service Commission and another v. S. Maruf Ahmad Ali (PLD 1988 Supreme Court 356) the Apex Court in consideration-of authority vested in Punjab Public Service Commission to "grant 05 grace marks to really deserving candidates" extended beneficial construction in favour of "deserving candidates". In the instant case as noted above, authority in the SPSC to grant 05 grace marks to the deserving candidate was deleted vide Notification dated 2nd February, 1999, since then such concession of awarding grace marks has not been exercised as none vest in the SPSC.
8. It seems that the attention of the learned bench was not drawn to the notification dated 2.2.1999 referred to above whereby "the provision for grant of 5 grace marks by Sindh Public Service Commission, as contained in West Pakistan Civil Service (Executive Branch) Rules, 1964", was "deleted." And so also to the fact that Recruitment Management Regulations, 2006 were already framed, providing for qualifying/passing criteria in the 'Combined Competitive Examination' which Regulation specifically forbid concession of grace marks Regulation 0743 reads as follows:- "0743 Conditionality Constituting Failure in an Examination ' Candidates appearing in any Written Examination conducted by the Commission, will be required to obtain passing marks in every subject of the examination. Failure in any subject shall constitute failure in the Examination irrespective of the candidates' performance in other papers condition(s) shall constitute failure in the Examination, if a candidate: a. Fails in any subject whether Compulsory, or Optional b. Passes in all Subjects but fails to achieve specified pass marks in the Aggregate. c. Fails to appear in any paper for whatever reasons. d. If found using unfair means, in which case he shall stand Disqualified/Debarred."
' The case reported as N. W. F. P Public Service Commission v. Muhammad Arif and others (2011 SCMR 848), applies on all fours to the facts and circumstance of case in hand. In said case, the candidate appeared for the competitive examination for the Provincial Management Group, but was short of few qualifying marks, which he claimed on the strength that similar concession was available to the candidates for "Provincial Judicial Services". In said case also, like in present case the 'Procedure, Syllabus and Requirements for Admission to the Combined, competitive Examination a note in bold letters was specifically added which made it clear to the candidates and read that "No Grace marks shall be allowed to any candidate"In this view of the matter, it is abundantly clear that criterion, qualification and terms/conditions for holding Competitive Examination for different categories could not be one and the same. It is questionable whether the provisions of Executive Branch Rules, 1964 would apply or could be invoked 'in to the extent it is in conflict with MRR Regulation, 2006 in the light of section 26 of the Sindh Civil Services Act, 1973, which question remains open to be examined in some appropriate case.
9. The Respondent was not able to show that since after the amending Notification dated 2.2.1999 SPSC could concede grace mark to any of the candidate. Deletion of provision for grant of 05 grace marks by SPSC as contained in the Executive Branch Rules, 1964 through amending Notification dated 02.2.1999, is a positive step in furtherance of good governance aiming towards raising and increasing merits and high standard of professional competence of Civil Servants. It is abundantly clear that SPSC is not vested with any authority to award grace marks. Under the given facts and circumstances Respondent had failed to make out any case of discrimination, vested right or legal rights in absence of any provisions either in the statute, rules and or regulations framed there under or the syllabus prescribed for examination of Provincial Management Services, thus no case for interference under Article 199 of the Constitution, 1973 by the High Court was made out.
10. In this view of the matter, this petition is converted into an appeal and is allowed and the impugned judgment dated 28.6.2016 passed by learned Bench of the High Court of Sindh, Circuit Court Larkana is set aside.