' 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 test. There is little dispute regarding the fact that the rule which is involved in this case stipulates that a person who is failing in one or two papers by a small margin can be given grace marks in really deserving cases subject to the qualification that this grant of grace marks would not in any manner prejudice the position of other candidates who may have qualified in the written test. The learned A.A.-G. Who is accompanied by departmental representative states that never in the history of enforcement of the said rule, the Public Service Commission has ever interpreted this rule so as to grant grace marks for making up the aggregate, but on the contrary, the grace masks which are given for the purpose of one or two papers are never added to the aggregate. This rule had, eversince its enforcement, been construed and followed consistently in the above terms.
2. However, learned counsel for the petitioner argued that there are no clear words to be found in the rule to the effect that the grace marks could not be added for the purpose of making up the required target of total of aggregate. If I was to accept the contention of the learned counsel for the petitioner, this would obviously mean that with an addition to total in aggregate he will go up in the position of merit and thus affect the merit list. This will be a negation of the spirit of law that grace marks in individual paper would not affect adversely any other candidate. Learned counsel for the petitioner tried to overcome this difficulty by saying that since number of vacancies were more and the persons who qualified in the examination were less, therefore, no harm would be done, if one mark was added to the aggregate. The argument may be attractive, in so far as it goes, but in exercise of Constitutional jurisdiction, I am not required to go by the desire of the petitioner, but have to abide by the spirit of rule which cannot be stretched to meet a situation which is not contemplated by it.
3. I may appropriately refer to the decision of the Supreme Court in re: Nazir Ahmed v. Pakistan and 11 others PLD 1970 SC 453 as regards the importance of a departmental practice in implementation of a rule. In the precedent case, it was held:-- "The departmental practice has followed the right course in implementation of the relevant rule, but whether right or wrong, it will be extremely unfair to make a departure from it now after a lapse of so many years and to disturb rights that have been settled by a long and consistent course of practice."
' A little later in the report the learned Supreme Court quoted with approval a passage from Crawford's Statutory Construction which reads:-- "Where the executive construction has been followed for a long time an element of estoppel seems to be involved. Naturally many ,rights will grow up in reliance upon the interpretation placed upon a statute by those, whose duty is to execute it. Often grave injustice would result should the Courts reject the construction adopted by the executive authorities."
In the facts of the present case, in the light of above principle, al departure from the consistent course of departmental practice in the implementation of the rule under examination appears unwarranted.
4. The case of the petitioner merely on the ground of hardship, Constitutional jurisdiction where infringement of the rule. The vires is said to be of a hardship, but I am not inclined to grant relief in this indulgence would constitute of the rule has not been attacked.
5. The learned counsel for the petitioner next argued that the petitioner had been able to obtain 49.88% of the marks and thus was short of required target by only 0.12%. The learned counsel on my asking endeavoured to lay his hands on a principle of law or any statutory provision to show that where a person fell short of the required aggregate on the basis of the percentage alone, the deficiency could be made good. In the absence of a statutory provisions requiring consideration of a fraction as a whole, I do not think, it is permissible to construe the rule in the manner so as to supply the deficiency.
6. Moreover, the petitioner is seeking direction for a mandamus, a grant of which is governed by the legal principle that there must reside in a petitioner an absolute right and a corresponding obligation to do that act must be cast on a statutory functionary by the statute. These elements are found to be missing.
' In view of what has been stated above, this writ petition fails and is hereby dismissed.