1. ' This judgment shall dispose of two writ petitions, viz. Writ Petition .No.2348 of 1984, in re: Muhammad Saleem v. Punjab Public Service Commission and another Writ Petition No.2569-S of 1984, titled as Muhammad Rafiq v. Punjab Public Service Commission and another, as both these constitutional petitions raise a common question of law.
2. Muhammad Saleem petitioner in Writ Petition No.2348 of 1984 and Muhammad Rafiq petitioner in the other aforementioned writ petition, appeared in the P.C.S. (Judicial Branch) Competitive Examination, held by the Punjab Public Service Commission in FebruaryiMarch 1984. The result of this competitive examination was declared on 19-5-1984. The names of both the petitioners were not shown among the names of successful candidates. Subsequently the Secretary, Punjab Public Service Commission intimated the petitioners about the detailed marks obtained by them. It transpired from the said communication that both these petitioners failed to obtain 33% marks in the compulsory subject of General Knowledge including Everyday Science. Each of them instead of 33 marks obtained 31 marks in the said subjects, although in aggregate they obtained more than 50% marks.
3. The West Pakistan Civil Service (Judicial Branch) Rules, 1962, in their application to the Province of Punjab were amended vide notifica tion No.SOR-III-I-12/70, dated 19th October 1972 and in the appendix to the Rules following note was substituted for the note under Compulsory Subjects: - "No candidate shall be summoned for viva voce test unless he has obtained at least 33 per cent marks in each individual written paper and 50 per cent marks in the aggregate of the written portion of the examination. Five grace marks may however be given to really deserving candidates in one or two papers; provided that such grant of grace marks shall not entitle the grantee to have a better position in the merit list than those successful candidates who have not been granted any grace marks. No candidate shall be considered to have qualified in the examination unless he also obtains at least 30 per cent marks in viva voce. Failure in or absence from viva voce shall mean that the candidate has failed to qualify for appointment and his name will not be included in the merit list."
4. ' This provision was also incorporated by the Punjab Public Service Commission in their syllabus and standard for the Civil Judges (formally Punjab Civil Service Judicial Branch) Competitive Examination, 1984.
5. Both the petitioners represented to the respondent-Commission for considering their case for the grant of two grace marks in each case in the subject of General Knowledge in which they could not qualify for want of two marks only. The Commission, however, turned down their representation.
6. The petitioners have thus assailed through the present constitutional petitions the decision of the Punjab Public Service Commission whereby it has refused to exercise its discretion in the matter of grant of grace marks.
7. In the parawise comments submitted by the Commission it has been maintained that when the provision for the grace marks was included in the relevant Rules governing the appointment of Civil Judges, the Commission took the following policy decision:- "This concesssion may be given only to those candidates who have not secured 33% marks in one or two papers but obtained 5% marks in aggregate and not those who have even failed to secure 50% marks in aggregate."
8. ' It has further been explained in the comments that to avoid arbitrary discretion or discrimination among candidates in the examination, the Commission since 1972, allowed grace marks to all candidates who have become eligible for them under the rules, but in the E.A.C. Examination held.,in .1983, it was decided that no grace marks may be allowed to any candidate. It has also been explained by the Commission that as decided in the E.A.C. Examination held in 1983, that no grace mark can be allowed to any candidate, the same policy was applied to the Civil Judges Examination held in February/March 1984, in which the petitioners appeared and no candidate was allowed any grace mark.
9. It transpires from the parawise comments submitted by the Punjab Public Service Commission that instead of exercising discretion in individual cases regarding grant of grace marks in one or two subjects, the Commission since 1983, decided as a matter of policy that no grace mark would be allowed to any candidate. This policy decision is certainly violative of the statutory rules, viz. West Pakistan Civil Service (Judicial Branch) Rules, 1962, as applicable to the Province of Punjab. This policy decision also_contravenes the principle of consistency inasmuch as till before 1983, the Commission has been allowing grace marks since 1972 to all candidates who become eligible for such marks in accordance with' the rules reproduced above. It is certainly discretionary with the Commission to allow or not to allow grace marks to a candidate but this discretion has to be exercised by the Commission in each individual case and the Commission cannot take a policy decision that in future no grace mark, would be allowed to any candidate at all. This policy decision could net 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.
10. In the light of the above observations, it is concluded that the impugned decision of the Punjab Public Service Commission is illegal and without lawful authority. The writ petitions are-accordingly allowed and the Punjab Public Service Commission is directed to consider the cases of the petitioners for the grant of grace marks in the light of the relevant rules and to make appropriate orders in exercise of its discretion in this behalf. There shall be no order as to costs.