1. ' WAJIHUDDIN AHMED, J.---The petitioner, being a first class graduate from the Shah Abdul Latif, University, Khairpur, appeared in the Competitive Examination, 1993, held by the Sindh Public Service Commission in 1995. The petitioner secured 627 marks out of a total 900 and, admittedly, would have ranked fourth in the merit list issued pursuant to the written part of such examination but he failed in one paper entitled, "Essay in English", securing 15 marks instead of a minimum 16.
2. The petitioner applied for grant of one grace mark to him but the Commission, according to him, for mala fide reasons, declined to grant such mark.
3. ' On notices being issued, pursuant to the filing of this petition, the Sindh Public Service Commission submitted its comments on 12-12-1995 but such comments, being vague, further comments were required and such were filed on 18-12-1995. In course of time, other material was also placed on the record. The upshot of the respondents' defence is that in all 7000 candidates were found eligible in the referred competitive examination, out of which number 1708 appeared in the written test, 187 qualifying the same. However, there were only 64 vacancies to be filled. In the event, according to the respondents, the petitioner had been accorded the facility of grace marks, he would have figured at Serial No, 188, required to be below such candidates, who had passed the examination and did not have the advantage of grace marks. Besides, no less than 122 candidates came within the ambit of the facility of the grace marks but such facility has never been granted over the years, the available seats remaining much less than the successful candidates, qualifying the written test.
4. ' In the petition, the petitioner has come up with the following prayers:- "It is, therefore, prayed that this Honourable Court may be pleased to:--
(a) Hold and declare that the petitioner is fully entitled to the grant of grace mark that is one mark in Essay in English Test and non-grant of single mark by the respondent Commission is without lawful authority and of no legal effect and consequently this Hon'ble Court may kindly direct the respondents to award one grace mark to the petitioner in the Essay in English written test to enable the petitioner to participate in the forthcoming vivas commencing from 12th instant.
(b) To hold and declare the expression ' Those Successful Candidates' appearing in the note appended below Compulsory Subject on page 4 of Annexure ' A' include only those candidates who have competed with the petitioner in the written portion of the Combined Competitive Examination and have been declared as successful or have obtained higher marks than 627 as obtained by the petitioner and does not include ' All Successful Candidates' as has been misinterpreted by the respondents especially respondent No, 2 which is legally misconceived and contrary to the very spirit of aforesaid note.
(c) Direct the respondent Commission to allow the one grace mark in Essay in English and allow him to appear in the forthcoming vivas commencing from 12th instant.
(d) Grant interim injunction against finalising the merit list for forthcoming vivas and final merit list of all the candidates of written as well as viva tests for the year 1995 about combined competitive examination.
(e) Direct the respondents to allow the petitioner to appear in the coming vivas and not to finalise the results and final results till the disposal of this petition.
(f) Any other relief which this Hon'ble Court deems fit and proper..............
5. ' Hearing the matter, we disposed of the same through a short order passed on 2-1-1996, reproduced as below:-- "This case has been received upon transfer from the Hyderabad Circuit Bench of this Court because of non-availability of a Division Bench there on account of vacations of the Court. We had heard this matter on 1-1-1996 but adjourned it for today because the learned Additional Advocate- General, Sindh was awaiting for the relevant record from Hyderabad. There is an urgency in the case because the learned Additional Advocate-General, Sindh, states, upon instructions, that whereas the result of the written test from the Combined Competitive Examination 1993 has been declared corresponding result of the viva voce test is ready to be announced any time.
6. ' Hearing the above matter and the listed application in the foregoing background, upon inquiry we have been informed that in the event the petitioner was allowed grace mark(s), which are permissible up to five in the papers, with a maximum of two such papers, the petitioner's total tally of marks instead of 627 would have become 628 and the petitioner would have been placed at Serial No, 4 amongst the 187 candidates who have been declared as successful in the written examination. In other words, all that the petitioner needed to qualify in the written test was to get 16 instead of 15 marks in the paper entitled 'Essay in English'.
7. ' It is conceded at the bar that grant of grace marks is within the discretionary power of the Sindh Public Service Commission but that power is to be exercised for 'deserving candidates in one or two papers' only. We thus enquired from he learned Additional Advocate-General, Sindh as to what other deserving candidate can be in contemplation of the Rules than one who would have figured at No, 4 on the merit list but for a missing single mark. That learned officer was unable to make a satisfactory answer and we have no doubt that the Commission in the petitioner's case has failed to exercise its discretion in accordance with law. If deserving candidates are made to suffer in this way, there can be little doubt that the only casualty in the process would be merit and such an outcome of exercise we are not prepared to condone.
8. ' In the circumstances and for detailed reasons to be recorded separately, we allow this petition except that as regards sub-clause (b) in the prayer clause we would condition the same by observing, in accordance with the Rules, that the ' grant of grace marks shall not entitle the grantee to have better position in the merit list than those successful candidates who have not been granted any grace marks', leaving it for the commission to examine whether the quoted condition would remain applicable to the petitioner even if he qualifies the viva voce examination, which examination we have no doubt would be held without any loss of time in order that declaration of the relevant results are not unnecessarily delayed.
9. ' Before parting we would saddle the respondents with the costs of this petition and also require the respondent No, 1 to explain in writing as to why the discretionary power, which is vested in the commission, had not been exercised at all even though an ex facie deserving case subsisted.
10. Explanation to be submitted within one month."
11. ' In the meantime, when the case was taken up for recording reasons, it was found that neither of the parties had placed the relevant Rules on the Record. In other words, relevant portion of the prospectus on which the contest centered was not substantiated by the Rules. A direction, therefore, was issued and the respondents filed a purported counter-affidavit on 26-3-1996 alongwith a copy of the Rules, which was brought on record. Rule 5(1) in the West Pakistan Civil Service (Executive Branch) Rules, 1964, as amended by Notification, dated June 20, 1969, is this:-- "5. Method of Recruitment.---(1) Recruitment to the service shall be made in the following manner:- -
(a) by initial recruitment on the recommendation of the Commission based on the .Result of a competitive examination conducted by it namely in December every year in accordance with Appendix ' A'; or
(b) by promotion."
12. ' In the operative part of the Rules, the mode of issuance of merit list does not seem to have been dealt with and the concept of merit list as it stood, pursuant to Rule 5(1)(a), in the original Appendix "A" was dealt with in this manner:-- "No candidate shall be summoned for viva voce test unless he has obtained at least 30 per cent.
13. Marks in each individual Written Subject. 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 would mean that the candidate has failed to qualify for appointment and his name will not be included in the Merit Lists."
14. (Emphasis added).
15. ' The reproduced portion in Appendix "A" was, however, amended through the same Notification, dated June 29, 1969, as above, appearing in the Gazette of West Pakistan, Extraordinary, dated June 26, 1969. Such relevantly is as under:-- "No candidate shall be summoned for viva voce test unless he has obtained at least 33 per cent.
16. 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 listthan 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."
17. (Underlining added).
18. ' Comparing the above reproduced amended and unamended notes in Appendix "A" to the Rules, several things stand out; firstly, in the unamended provision passing criteria had nexus with a subject which upon amendment was reduced to each paper, a subject having the potential of more papers than one. In the instant case, were English taken as a subject, the petitioner would have more than comfortably got through since in the other English `paper he secured 68 out of 100 marks. Secondly, the pass percentage for each subject, as distinguished from each paper in the amendment, was 30% which got enhanced to 33% subsequently. Likewise, at the outset there was no minimum requirement of any aggregate which too, through the amendment, was, for the first time, fixed at 50% total marks. Correspondingly, there was no stipulation of grace marks in the original version. The same apparently emanating because of the revised requirements. As it is under the unamended test a case like that of the petitioner would have necessitated no grace marks. The element of grace marks should also be viewed in the legislative background that the passing percentage for viva voce has remained unaltered throughout at 30%, undergoing no' revision and attracting no element of grace. Lastly, the original rule spoke of merit "lists" whereas the current version talks only of a single merit "list". Even so, lists are still issued twice-over, first after the written examination and the second upon holding of the viva voce. There could, therefore, be some confusion about entering a candidate on the merit list and the provision, accordingly, is to be interpreted advancing the acceptability of merit and discouraging lack of it.
19. ' Accordingly, in order to ascertain the intent of the law, we have to interpret the above substituted provision in the background of its legislative history, always keeping in mind that it is the best that the Civil Service deserves. Thus, it will, at once. Be seen that the grace marks, limited to 5, are to be A "given to really deserving candidates in- two papers only". The concept of "really deserving candidates" must, therefore, first satisfy the requirement of a minimum of "50 per cent. Marks in the aggregate of the written portion of the examination". Next, the aggregate marks, obtained in the written part of the examination must be high enough to qualify for being considered as "a really deserving" candidate. It is an admitted position that the concerned candidate, petitioner here, secured 627 marks on the aggregate out of a total 900 marks in the written, test and uninhibited by any grace mark would have ranked fourth amongst the candidates, who qualified the written examination. In other words, there have been only three candidates who obtained more than 527 marks and the rest obtained less than that tally. Apply and principle, as one may, there is no escape from the fact that the petitioner was a "really deserving" candidate and was, therefore, entitled to the requisite single grace mark. The Commission, resultantly, acted illegally in not exercising its discretion to advance the prospects of a truly meritorious individual. Now, what would have happened had the Commission accorded the mark where it was due? No more than that the candidate, who would have failed otherwise, would have become entitled to be called for viva voce. The reason. For the Commission not responding positively is that while there were 187 successful candidates, there happened to be only 64 vacancies and even if the petitioner was accorded the benefit, he, according to the Commission's interpretation on the rule, would have figured at Serial No, 188 of the merit list and thus far from being entitled to be selected. This aspect would be attended to later. Another contention is that there were several candidates failing by one mark only and if in one case the benefit was accorded, such may have opened the door for an endless exercise. In view of the connotations of the expression "really deserving" candidate discussed, we are constrained to conclude that hardly a few would have merited grace in the overall perspective. The apprehension, therefore, is ill-founded.
20. ' Now comes the other question in the case on which, because. Such would arise only if the petitioner is called for the viva voce and qualifies therein, we have, at this stage, desisted in granting relief. That emerges from a further restriction, occurring in the reproduced portion, requiring that "grain 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". It has already been noticed that the element of grace marks, missing from the original test was introduced through an amendment which, in at least two different ways, enhanced the qualifying requirement in the written examination. The obvious object was to provide a written examination.
21. The obvious object was to provide a simultaneous reprieve to otherwise demonstrably deserving cases. Who does not know that, in many a subjects, there can be no mathematical certainty in marking the papers and a single mark here or there can make a world of difference? Besides, on a given day, state of a person's mind or body may fail to keep up with the challenge and yet, by and large, the candidate may be simply outstanding. Last, but not the least, can it, in these difficult times, be ruled out that somebody, moved by pure malice, may in this way try to do in an otherwise unbeatable candidate? Hinting this precisely, the petitioner also sought rechecking. Hence the wisdom in the rule.
22. ' The respondents, none the less, have been interpreting the provision to mean that, in the first instance, all the successful candidates would be brought on the merit list and thereafter shall figure the grantee of the grace marks, if any. Since, however, the number of seats to be filled by the Public Service Commission were, according to the respondents, much less than the successful candidates in the written test, no question arose of any deserving candidate being in the picture for grant of grace marks to him because even if grace marks were added and such candidate was allowed to pass in the failed paper no benefit could secure to him, making the exercise meaningless.
23. ' While we have refrained from granting relief in the foregoing context, covered by sub-clause (b) in the prayer clause, expecting that if and when occasion arises, that is to say in case the petitioner qualifies in the viva voce, the Commission would not be slow in dispensing justice, taking into account all the implications of the contest, that circumstance does not deter us from spelling out the necessary guidelines for facility of being drawn upon in case of need. Thus, it may not be insignificant that the original text contemplated merit list(s) and not a single list and relative to the restriction, the framers of the Rules may have been referring to the merit list issued after written portion of the examination, letting the grantee of grace mark(s) to figure at the end of such list, the final position emerging in the normal course in the ultimate list issued following the viva voce.
24. Interestingly, it has been conceded that even now successive lists are issued, first after the written test and the second after the viva voce. As to the first, it is claimed that such only reflects the successful examinees in the written portion whereas the second is the merit list. When the original rule contemplated merit list(s) obviously implying that the first also was issued in the order of merit, it is difficult to understand the current logic. Indeed, if both lists were to reflect merit the whole rule should fall in place and there would be no redundancy, as shall be presently discussed.
25. ' Now, we have been of the considered view that such provisions, as the foregoing, have. To be beneficially construed, antra deserving candidate, in terms discussed above, if available is to be accorded relief by the Commission. This can be done by interpreting the rule with reference to its historical background as hereinabove. Discussed. Another alternative is to accord the grace mark(s), if warranted enter the candidate in the list of successful candidates in the written part and call him for viva voce. This for the petitioner has come about upon the limited success of the petition. Here onward, if the grantee of the grace mark(s) crosses the hurdle of the viva voce, he may not be placed higher on the ultimate merit list than -such candidates who, without benefit of grace-marks, would have normally figured above him. In other words, taking the instant case as an example, if there was another candidate having 628 marks and the-petitioner was accorded the benefit of one grace mark, bringing his tally to 628' marks the petitioner would rank only after the candidate who unaided with the facility of the grace-mark already had secured-628 marks.
26. Correspondingly this would not mean that once the addition of such grace mark was allowed to the petitioner he would rank below a person who had secured only 626 marks, having been lower, unaided by any grace mark to the tally of the petitioner, which stood at 627. All this, however, should,-comee for reckoning-only after the result of the viva voce, for no one can know whether a {{BLUR PAGE}} ' candidate-successful in the written part would succeed in viva too..Flere a possible hurdle may be encountered and for that reason the first alternative above discussed,may,be a'betterkoption. We are visualising a situation where some candidates, obtaining higher marks than the beneficiary of grace mark(s) getting lesser marks in tviva,, secure. Less total marks than the beneficiary and similarly some getting less marks than the grantee in the written test on account of higher marks in viva, get a better overall result. If the first alternative of two merit lists was adopted, the matter would be simple. In this, the secondloptionp-perhaps both sets of such candidates should rank higher than ,the beneficiary. But all, These alternatives- we havo left for the Commission to-adopt in-the fitness of things and in good-time. In conclusion, all that we need to say is that unless the rule is beneficially construed, the whole concept wouldq-becorne redundant because in that case even a "really deserving" candidate, withqhe addition, of legitimate C grace mark(s) would never benefit from- the provision. That indeed seems to have been the case with the Commission because we are informed that in no case whatsoever,. Over the years, has anyone been allowed to benefit-under,the rule. This implies that the Commi ssion paper,in whichtheAfailedlandyin relation,tovssihtich,tevtintersaliaybasielaitted a single -grace markt. For The-same rettsom wo.Have, norLbeetriitiblittred-uolake, note of allied pleas mal a Ade g again stt the L respondent- No,- 24 gindi claim that respondents, in Toutine, have-beerr-declaringithe-results-almoStqwice over. {{BLUR PAGE}}