1. Petitioner appeared in a competitive examination held by the Punjab Public Service Commission in February, 1986, for filling up 62 posts of Civil Judges. In order to qualify for viva voce test, candidates were required to obtain at least 33 per cent. Marks in each individual subject and 50 per cent in the aggregate of the written portion of the examination. Petitioner was informed vide letter dated 7-6- 1986 that he had failed to qualify in the written portion of the examination. He had, in fact, failed to qualify in one out of eight subjects viz. The Criminal Law Paper in which he had obtained 30 marks.
2. He had also failed to obtain the qualifying marks in the aggregate as his total marks were 397 out of 800.
3. Relying upon the Appendix to the West Pakistan Civil Service (Judicial Branch) Rules, 1962, which permitted the grant of five grace marks in one or two papers, petitioner approached the Public Service Commission with the request that he may be granted three marks in the paper of Criminal Law which would make up the deficiency in his aggregate and thus he would be eligible for viva voce tests. Commission declined the petitioner's request on the ground that the concession of grace marks envisaged under the relevant rule was granted only to those candidates who secured 50 per cent marks in aggregate and not to those whose aggregate fell short of 50 per cent.
4. Feeling aggrieved, petitioner alongwith another similarly placed candidate approached this Court in W.P. No. 2982/1986 which was dismissed in limine on 26-1-1987 on the ground that it was wholly within the domain of Public Service Commission to lay down a criterion for the grant of grace marks and the criterion laid down by the Commission was not arbitrary or capricious nor was any discrimination made. It was also observed that the grace marks could not be claimed as a matter of right nor could such a claim be enforced by invoking constitutional jurisdiction. Petitioner did not agitate the matter any further. His position is that he awaited the decision of the Supreme Court m an almost identical case of S. Maruf Ahmad A.I which the Supreme Court has since decided holding therein that a candidate failing to get qualifying marks in one written paper as also in the aggregate can be granted grace marks upto five marks under the relevant rule and the marks so granted could also be added to the aggregate. It is stated that after this decision of the Supreme Court, petitioner approached the respondent-Commission once more but his request was again turned down. Petitioner has therefore, filed the present constitutional petition praying that "this Hon'ble Court be pleased to declare the action of the Punjab Public Service Commission withholding the grant of grace marks-to the petitioner as well as the complete result of the petitioner to be without jurisdiction and contrary to law." It is further prayed by the petitioner that respondent No. 1 be ordered to grant three grace marks to him in the light of the afore referred judgment of the Supreme Court.
2. I have heard the learned counsel for the petitioner as also the learned Assistant Advocate- General. Facts stated hereinabove are not in dispute. Petitioner failed to obtain the qualifying marks only in one paper viz., the Criminal Law. He asked for the grace marks in terms of the provisions of the aforementioned Appendix but his request was not acceded to by the Commission on the sole ground that he had also failed in obtaining the qualifying marks in the aggregate. Case of the petitioner is that the Appendix m question does not visualize any such bar. The Appendix relied upon by the petitioner reads as follows:-- "No candidate shall be summoned for viva voce and psychological tests unless he has obtained at least 33 per cent marks m 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."
5. The forequoted provision has been interpreted by the Supreme Court of Pakistan in the aforenoted case of S. Maruf Ahmad A.I which has been reported as Punjab Public Service Commission and another v. S. Maruf Ahmad A.I (PLD 1988 SC 356). Their Lordships repelled the argument of the learned Advocate---General that the grace marks given for the individual subject could not be added to the aggregate and observed, "the more we read the rule a clearer intention and interpretation emerges: namely, that the grace marks given for the subject would also be added in the aggregate except that such aggregate, when form; part of the total marks obtained by- the candidate inclusive of the viva voce test , shall not be usable against other competing candidates."
6. In view of this authoritative interpretation/pronouncement, learned Assistant Advocate-General appearing for the respondents had nothing to say in the matter of- grant of grace marks to the petitioner in the individual subject and consequential improvement of the aggregate. He, however, took an objection that the petitioner's earlier writ petition seeking similar relief having already, been dismissed, the present writ petition was hit by the rule of res judicata. I am afraid, the objection has no substance in the facts and circumstances of the case. It is not denied that after the Supreme Court's pronouncement in the aforementioned case of Maruf Ahmad A.I, petitioner approached the Public Service Commission for the grant of necessary relief in the light of the law declared in the said case but his request was declined.. This, in my view, gave a fresh cause of action to the petitioner. This petition is, therefore, maintainable as the substantial relief now claimed. By the petitioner is based on the Supreme Court judgment. Needless to observe that since the view taken by the Public Service Commission has not been countenanced by the Supreme Court and the relevant provision relating to the grant of grace marks has been clearly interpreted to mean that a candidate cannot be refused the grace marks on the ground that he failed to obtain the qualifying marks in the aggregate and the grace marks granted in individual paper can be counted/added to the aggregate, Public Service Commission is bound to follow the law laid down by the Supreme Court and to re-examine the petitioner's case in that light.
7. It may pertinently be observed that the petitioner had appeared in the viva voce test under the orders of this Court passed in the earlier writ petition and it has been stated by the representative of the Public Service Commission that the petitioner has passed in those tests. Petitioner has also alleged and it has not been controverted by the respondent that for 62 posts advertised by the Commission, only 50 candidates had qualified in the written examination.
3. In view of what has been said above, this writ petition is allowed and the respondent- Commission is directed to re-consider the petitioner's case for the grant of grace marks in terms of the aforementioned Appendix as interpreted by their Lordships of the Supreme Court in the aforenoted case of S. Maruf Ahmad A.I and declare his result accordingly.
8. No order as to costs.
9. AA./S-515/L