ABDUL SHAKORUL SALAM, J.--Appellant appeared in a competitive examination for recruitment to the posts of Civil Judges held in February, 1985. He was informed vide memo. No. DDE-CJ-85-1-- PPSC/1082-EX, dated 23-4-1985, para. 2 that "you have failed to qualify in the written portion of the above noted examination held in February, 1985. The marks obtained by you in each subject are as under:-- Compulsory Subjects Maximum marksMarkes obtained
(1) English General and English Essay. 100 45
(2) Urdu General and Urdu Essay. 100 32
(3) General Knowledge including Everyday Science.100 56
(4) Civil Law-I 100 54
(5) Civil Law-II 100 50
(6) Criminal Law 100 43 Optional Subjects:
(1) Islamic History Part I 100 58
(2) Islamiat. 100 61 N.B.--The qualifying marks are at least 33% of the marks allotted to a subject in each individual written paper and 50% marks in the aggregate of written portion of the examination."
The appellant represented that he had failed in General Urdu Paper by one mark only, he may be granted five grace marks (permissible) to qualify for the interview. The representation is, dated 27- 4-1985. Having had no effect he filed W.P. No. 1821/85. It was observed by the learned Single Judge in his order, dated 20-5-1985 that "the short point involved in this case is whether the petitioner who has failed to get 50$ aggregate marks in all the papers in which he appeared during the competitive examination is entitled to the benefit of one grace mark so as to be eligible for viva voce and Psychological tests". The A. A. G., accompanied by the departmental representative stated that "never in the history of enforcement of the said rule, the Public Service Commission has even interpreted this rule so as to grant grace mark for making up the aggregate, but on the contrary, the grace marks which are given for the purpose of one or two papers are never added to the aggregate. This rule had, ever-since its enforcement, been construed and followed consistently in the above terms". Relying on Nazir Ahmad v. Pakistan and 11 others PLD 1970 SC 453, the learned Single Judge held that "departure from the consistent course of departmental practice in the implementation of the rule under examination appears unwarranted," and so dismissed the petition. Hence, this Intra-Court Appeal.
2. Learned counsel for the appellant contended that his case was that the appellant was entitled to at least one grace mark in Urdu paper, as permissible under the relevant provision, and if that were to be given his aggregate would be more than requisite 50$. Otherwise too his aggregate being 399 out of 800 was 49.87% which in round figure will have to be read as 50%. In either case, the appellant would be entitled to be called for viva voce examination.
3. Mr. C.M. Latif Rawn, Advocate who had filed a petition in respect of the same examination and whose client had passed in all the subjects but had got 49.87% marks in the aggregate i.e. Less than 50% and was not called for interview submitted that where-ever there is a fraction, round figure is taken. If the fraction is less than half, it is ignored. If it is more than half, next digit is taken. In the case of his client, his aggregate being 49.87% that should have been taken as 50%. He referred to instructions of the Finance Department of the Government of Punjab to the same effect and also submitted that it was so the opinion of the Law Department in this case but the Government preferred to have the decision of the Court. He referred to a treatise "Basic Numeracy Skills and Practice" by John Newbury at page 90 wherein, it is stated that "in calculation of fraction when a figure is more than the half, its next number is to be taken and whereas, if it is less than half, then it will be ignored". He has also referred to the Rules of the Board of Intermediate and Secondary Education, Multan for Secondary School Certificate and Intermediate Examination wherein, it is stated in rule 15 that "fraction in the concessional marks shall be counted as one". He also referred to the Explanation to rule 6 of the Punjab. Local Council (Removal of Chairman, Vice-Chairman of Member) Rules, 1982 wherein, it is laid down that "in computing majority for the purposes of these Rules, the fraction if any, shall be deemed as a whole". Learned counsel made the precise submissions on our request though he had withdrawn the writ petition on behalf of his client for some reason. The learned Addl. Advocate-General submitted that the general method of reckoning is of no relevance. Where-ever the law of the land provided that a fraction be taken as, a unit it expressly provided so and where no such provision is made, the reckoning cannot be as contended by Mr. C.M. Latif Rawn, Advocate.
4. The learned Additional Advocate-General in opposition to the appeal submitted that the appellant could not be given one grace mark in Urdu paper because his aggregate was less than 50%. Grace marks can only be given in individual paper or papers if the aggregate is 50% or more.
He submitted that in any case grace marks given in individual papers cannot, be counted in calculating the aggregate.
5. Question of rounding off of figures is neither helpful to the appellant because of his having not obtained requisite number of marks in an individual paper nor germane to the decision of the appeal as it involves another point which will be dealt with next. Therefore, no decision is required to be made on the issue.
6. In the case in hand, the precise point is that the appellant has failed in one of the eight subjects in which he appeared, by one mark. The subject was Urdu General and Urdu Essay. He got 32 marks instead of 33 required for passing the examination. The case of the appellant is based on the provision which reads as follows:-- "No candidate shall be summoned for viva voce and psychological tests 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.----"
Learned counsel for the appellant submitted that the aforesaid provides for two situations. The first is that no candidate shall be summoned for viva voce examination if he obtains less than 33 per cent marks in each individual written paper and 50 per cent marks in the aggregate of the written papers. The second is that five grace marks can be given to a deserving candidate" 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". The contention of the learned counsel for the appellant is that the two provisions provide for two different eventualities. His case is covered by the second provision. In reply, the learned Addl. Advocate-General submitted that a person may be given grace mark in one or two papers upto five marks if the aggregate of total marks is 50 per cent or more. He cannot be given grace marks if the aggregate is less than 50 per cent nor the grace marks granted can be reckoned in totalling up the aggregate. If this be not permissible, the appellant would still be ineligible for being called for interview for having less than 50 per cent aggregate.
7. This appeal was heard alongwith three other petitions in which question of rounding off was involved. Under the interim orders of the Court, all the four candidates were interviewed. The result has been shown. The other three have failed in the interview. Only appellant has passed the viva voce examination. The three petitions have, therefore, been withdrawn.
8. From the provision quoted above, it is quite clear that two situations are envisaged. The first is that a candidate shall not be summoned for viva voce examination if he had not obtained 33 per cent marks in individual papers plus 50 per cent in the aggregate. If he had on the other hand got the requisite marks, he shall be called for viva voce. The provision deals with candidate's ineligibility or his right to be summoned. It has nothing to do with the power of the Commission. The provision is independent and distinct. The second provision is that grace marks may be given by the Commission in one or two papers. But it is subject to the condition that the grant shall not entitle the candidate to be better than the one who had not got grace marks. This provision -is for the Commission. An idea occurred whether grace to be conferred by a body can be claimed by an individual. But when it is provided for in statutory rule or authority is conferred and it is, laid down that it shall not affect others and when it is invariably exercised, a person concerned can ask that he be not discriminated against and be shown the same grace which is done to similarly placed or at least his case considered. In the case in hand, the appellant was not held entitled to one grace mark in a language paper on the ground that his aggregate was less than 50 per cent. Therefore, it, has to be seen whether the ground is valid, now, referring back to the provision, it will be recapitulated that the grant of grace marks is not conditional upon getting 50 per cent marks in the aggregate. That percentage is for another purpose of calling for interview. The limitation on grant of grace marks is that the grantee shall not be better off than others who had got marks on their own. Condition of one provision cannot be added to another provision when the latter has its own conditions. The appellant was asking for one grace mark in a language paper. Exact or accurate marking to a number may be possible in a paper like Mathematics or Physics. But there is always a possibility of one mark being more or less in a language paper. That may be the reason that the Commission is allowed to give grace marks upto five. Now, if the appellant is given one grace mark in the Urdu language paper, his aggregate will be 50 per cent. The contention of the learned Additional Advocate General that the grant of one grace mark in the paper cannot be counted in reckoning the aggregate is really not very gracious. What is the use of showing grace if it has not to have full effect? One cannot be gracious and then withhold part of the benefit of the grace. Moreover, if there is grant of grace marks but those marks are not to be added to the total and reflected therein, it would be bad arithmetic because the total of all the marks including grace marks would be more but shown less. The contention of the learned Additional Advocate-- General on departmental practice and reliance on Nazir Ahmad v. Pakistan and 11 others PLD 1970 SC 453 in the order under appeal is not quite apt. That is when rights of others are or are likely to be disturbed. In the case in hand, the relevant provision has already safeguarded the rights of others by laying down that grant of grace marks will not affect others who had got marks on their own.
Therefore, in all the circumstances of the case since the representation of the appellant for one grace mark was not considered because of his aggregate being less than 50% i.e. Only 49.87%, and the condition of having 50% in the aggregate being not the part of the provision relating to grant of grace mark but of another provision, the case is remitted to the learned Public Service Commission to consider his case for grant of one grace mark in the language paper and if it graciously grants one grace mark that shall be counted making the appellant eligible for viva voce examination, which incidentally he has passed. The appeal is accordingly allowed but, in the circumstances, parties are left to bear their own costs.
A.A.