Rasaal Hasan Syed, J. This appeal under section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991 is directed against notification and orders dated 24.7.2019 and 27.2.2023 whereby the appellant was discharged from service under section 5(3)(a) of the Punjab Civil Servants Act, 1974 and her representation under Rule 9 of the Punjab Civil Judges Departmental Examination Rules, 1991 for grant of grace marks was declined.
2. Resume of necessary facts is that the appellant was appointed as Civil Judge-cumJudicial Magistrate (BS-17) vide notification dated 20.8.2015 under sections 4 and 5 of the Punjab Civil Servants Act, 1974 on probation for a period of two years. She duly joined the post. As per Rule 8 of the Punjab Judicial Service Rules, 1994 for her confirmation she was obligated to pass Departmental Examination which, under Rule 6 of the Punjab Civil Judges Departmental Examination Rules, 1991, could be done in maximum of 04 chances. These chances had to be availed in successive examinations beginning from commencement of the examination held immediately after appointment. She was unsuccessful in all 04 attempts and, in result, was discharged from service under section 5(3)(a) of the Punjab Civil Servants Act, 1974. She moved a request for grant of 05th chance through representation No.167 dated 13.5.2019 which was considered and declined by the competent authority by order dated 07.8.2019 and representation/review petition thereagainst was also turned down vide communication No.01/RHC-C-1 dated 04.1.2021.
3. The appellant filed Service Appeal No.04 of 2019 titled Anam Haseeb v. The Lahore High Court, Lahore through the Registrar, Lahore High Court, Lahore in which she challenged her discharge notification/order dated 24.7.2019 (again assailed in instant appeal) by taking the stance that she should be given a 05th chance to take the Departmental Examination. This Tribunal vide judgment dated 19.11.2021 dismissed this appeal. Statedly she has invoked the jurisdiction of Supreme Court of Pakistan thereagainst which is now pending.
4. After remaining unsuccessful in such plea for 05th and additional chance, it appears, that the appellant belatedly filed a representation on 20.1.2022 by invoking Rule 9 of the Punjab Civil Judges Departmental Examination Rules, 1991 for grant of grace marks. This representation was also declined vide order dated 27.2.2023 which along with the discharge notification dated 24.7.2019 is assailed by filing the instant appeal.
5. Learned counsel for the appellant has been heard at length who submits that the grace marks were granted to similarly placed persons and that in the circumstances she was also liable to be allowed grace marks under the relevant rules and that the appellant was illegally discriminated against. Through the instant appeal averments on 05th chance are also iterated and this appeal to extent of such pleadings is of no moment as the question to such extent has already been laid to rest to the extent of this Tribunal by judgment dated 19.11.2021 in Service Appeal No.04 of 2019 and may not be discussed any further.
6. Learned counsel for the respondent has opposed the stance qua grace marks who submits that the representation to be granted such marks was belatedly filed which was correctly declined and that the appeal is time-barred which is liable to be dismissed.
7. Scrutiny of appended documents shows that the appellant made 04 attempts to pass the Departmental Examination in the manner that 01st attempt was taken through 34th Departmental Examination in which she failed in Paper-I, Paper-III, Paper-IV and Paper-VI. She thereafter took her 02nd attempt through 35th Departmental Examination and failed in Paper-I, Paper-III and Paper-IV.
Her 03rd attempt was through 36th Departmental Examination in which she failed in Paper-III and Paper-IV. 37th Departmental Examination was held for only 06 candidates of Batch-2014 as their probation period was going to expire, therefore, she was not obligated to take it. She was given exemption from taking 38th Departmental Examination by the Chief Justice as she was already on sanctioned medical leave by the District & Sessions Judge concerned w.e.f. 26.3.2018 to 07.4.2018.
Her 04th and final attempt was through 39th Departmental Examination in which she failed in Paper-IV.
8. On exhaustion of the maximum number of permissible chances to pass the Departmental Examination she was discharged from service. By her representation she claimed that she should be granted grace marks in her 35th or 36th Departmental Examination on the basis that her batchmates were given such grace marks at the time. This stance was declined and her representation was dismissed by order dated 27.2.2023.
9. To examine the contention of being liable to be granted grace marks, Rule 9 of the Punjab Civil Judges Departmental Examinations Rule, 1991 is germane, which provides that 05% marks as grace marks may be awarded in any paper in any examination. She had failed in multiple papers as noted supra in those two Departmental Examinations. As per learned counsel for the respondent, diction of the Rule as manifested through departmental practice, denotes that candidates are eligible for grace marks if they fail in one paper and not in multiple papers. In fortification of this interpretation, he has referred to consistency in such application of this Rule and defended the stance against discrimination, by submitting that all those judicial officers to whom reference is made and were granted grace marks by the Committee constituted under Rule 4 of the Punjab Civil Judges Departmental Examination Rules, 1991, had failed in only one subject and not more.
10. In this regard copies of the lists have been placed on record with C.M. No.1 of 2024. Appended documents show that in 35th Departmental Examination grace marks were not given to anyone.
This apparently in not a point of contention from the standpoint of alleged discrimination as appellant herself admitted at paragraph 8 in her representation that as a matter of policy no grace marks were awarded to any civil judge in the 35th Departmental Examination. Her plea qua grace marks must, as such, be examined in the context of 36th Departmental Examination in which she claimed that her batchmates were granted grace marks and she was not. She supported her representation with a list of 36 judicial officers who were her batchmates. Her stance qua discrimination was based on these candidates. The list of judicial officers as finalized by the Committee who were granted grace marks in the 36th Departmental Examination, which is the penultimate examination taken by appellant, is available at page 14 of C.M. No.1 of 2024 which evidences that 40 judicial officers were granted grace marks in that Departmental Examination.
Out of these from serial Nos.5 to 40 are judicial officers she listed with her representation, claiming that she should be treated on par with them. On close scrutiny it is evident that each and every one of them was failing in one subject by a margin that could be made good by 05% grace marks. This clearly establishes the departmental practice qua Rule 9 of the Punjab Civil Judges Departmental Examination Rules, 1991 which deciphered entails that the candidates would only be eligible for grace marks up to 05% if they were failing in one paper and not more. In University of the Health Sciences Lahore and others v. Sh. Nasir Subhani and others (PLD 2006 SC 243) the Supreme Court of Pakistan observed to the effect that the culture of seeking award of grace marks is against the settled principles of good governance and improving the higher standards in professional context and departmental practice in this regard in view of the rule contained in Nazir Ahmad v.
Pakistan and 11 others (PLD 1970 SC 453), Messrs Radaka Corporation and others v. Collector of Customs and another (1989 SCMR 353), Aslam Warraich and others v. Secretary, Planning and Development Division and 2 others (1991 SCMR 2330), Lever Brothers Pakistan Ltd. and another v. Government of Punjab through Secretary, Health Department, Civil Secretariat, Lahore and 3 others (PLD 2000 Lah. 1) Muhammad Ilyas v. Bahauddin Zakariya University, Multan (2005 SCMR 961) and Memoona Noureen v. Vice-Chancellor, Fatima Jinnah Women University, Rawalpindi (2011 CLC 230) shall be deferred to in interpreting such rule which must be applied narrowly. In following this practice no discrimination could be shown to have been committed in case of appellant who failed in multiple subjects and despite multiple attempts could not pass the Departmental Examination.
11. It is also noteworthy that the appellant never claimed that she be awarded grace marks either in her 35th Departmental Examination or 36th Departmental Examination and took the 39th Departmental Examination without even filing a representation regarding the previous results for grant of grace marks. She, as such, by her conduct knew the rule fully well as also its implication and operative parameters as per departmental practice and brought the representation as an afterthought. She in fact accepted the results of such examinations by taking the next attempt through 39th Departmental Examination in which although she failed in one paper i.e. Paper-IV this was by a margin which could not be salvaged from failure as it was by more than 05% marks and has not claimed grace marks for the said attempt.
The demand in the circumstances for grant of grace marks in the 36th Departmental Examination on the basis of discrimination is completely untenable and was rightly declined.
12. Another aspect of the matter is that under section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991 she had 30 days from the communication of the order to file an appeal. In the instant case the impugned order declining her representation for grant of grace marks was passed on 27.2.2023. She claims that this was not "communicated" to her which was "received" on 22.3.2023. However, in her application under section 5 of the Limitation Act, 1908 for condonation of delay it is asserted that the order was not communicated to her by any means i.e. TCS, courier, Registered Post A.D. telephonically, etc. and on 22.3.2023 she herself visited the concerned branch for inquiring about her representation when she was informed that this had been declined. Yet the appeal was not filed till 19.4.2023. By then the period of 30 days from the date of the order had long lapsed. By the application for condonation of delay an arbitrary date is taken as 22.3.2023 to self- assume the factum of communication by stating that she herself visited the concerned branch. As to what made her visit the branch a month after the date of the order i.e. 27.2.2023 and why this was not done any earlier and how it could be assumed to be the date of "communication" based entirely on her own version lacks credence unless corroborated by some documentary material which is conspicuously missing. Let alone record a plausible explanation for why she herself did not bother to inquire any earlier as to decision of the representation by presenting a detailed narrative the application is also devoid of any effort to explain the time consumed between 22.3.2023 and when the appeal was filed on 19.4.2023, by which point it had become time barred. Under the law rigorous explanation for each and every day of delay is liable to be given by the applicant to make out a case based on sufficient cause to be allowed condonation of delay in filing of appeal which in the instant case is completely lacking.
13. For reasons recorded hereinabove instant appeal is dismissed on account of limitation as well as on merits.