1. TANVIR AHMAD KHAN, J.---This Intra-Court Appeal is directed against the order dated 29-1-1997 passed by the learned Single Judge, dismissing the Constitutional petition and refusing to take into account the concessional marks given in an individual paper while calculating aggregate.
2. Facts briefly for the disposal are that the appellant took admission in 3 years LL.B. course of the Islamia University Bahawalpur in the year 1994. He took LL.B. Part I annual examination of 1995 held in March, 1996 under Roll No,151 but failed in paper 1 and VI i,e, Jurisprudence and the Constitutional Law. Again he appeared in Supplementary Examination of 1995 in all subjects held in August, 1996 under Roll No,83. As per result card issued on 17-12-1996 he failed in paper VI i,e, Constitutional Law.
3. The result card issued on 17-12-1996 was as under: PAPER MARKS OBTAINED I-Jurisprudence 40/100 II-Law of Contract 45/100 III-Islamic Jurisprudence 55/100 IV-Law of Torts and Easements45/100 V-Criminal Law 47/100 VI-Constitutional Law F/1100 The appellant was directed to "reappear in paper VI in any two chances till August, 1997." During the course of inquiry, it came to light that the appellant secured 35 marks is paper VI and the total number of marks secured by him in the said examination were 267. He approached the University authorities and claimed grace marks on the basis of Regulation 5 but all his efforts ended in futility.
4. Faced with this situation he filed the Constitutional petition out of which the present Intra-Court Appeal has emanated claiming grace marks on the basis of Regulation 5(1) (a) . However, the same was dismissed. Hence this Intra-Courts Appeal.
5. We have given our anxious consideration to the entire facts of this case. Regulation 5(1) on the basis of which the grace marks are claimed is as under: "Every candidate, in order to be deemed to have passed this examination whether taken in 1st Annual or IInd Annual, shall be required to obtain at least forty per cent of the maximum number of marks allotted to each paper and with at least forty five per cent in the aggregate.
6. Provided that a candidate shall be deemed to have passed if he (a) fails in any individual paper by a margin of not more than 5 marks (b) fails in the aggregate by a margin of not more than 5 marks (c) fails in more than one paper by a margin which can be made up by distribution of upto five marks over the papers/aggregates in which he fails."
7. It is the case of the appellant that he is entitled to the grace marks under clause (a) of proviso in his paper VI and if the marks so obtained are calculated in his grand total the same would come to 272 which would satisfy the requirement of 45% in the aggregate. However, the stance of the learned counsel appearing for the respondent is that the grace marks given in paper VI of Constitutional Law would not be counted while calculating aggregate. He is of the view that the aggregate of the appellant would be calculated on the basis of 35 marks which he secured in the Constitutional paper and the 5 grace marks are only added to declare him pass on notional basis in an individual paper. He has stated that since the appellant is short of 3 marks in the aggregate as he secured 267 marks as such benefit of which would come to 8 marks as 5 marks in paper VI under proviso(a) and 3 marks in aggregate under proviso (b) cannot be given to him under Regulation 5(1).
8. We are sorry we cannot accept this restricted interpretation placed upon Regulation 5(i) by the learned counsel for the respondent University. The three situations envisaged by the proviso are independent of each ,other. Under clause 'a' of the proviso 5, grace marks are given to a candidate who fails in one paper while proviso (c) would be attracted in a situation where a candidate fails in more than one paper. Proviso 'b' is completely different and caters for the situation where a candidate fails in the aggregate by a margin of not more than 5 marks. The case in hand is relate able to proviso (a) of Regulation 5(c) as the appellant has failed in one paper i,e, Constitutional Law. If the 5 grace marks as envisaged under this clause are added in paper VI of the appellant, his total would come to 40 marks declaring him pass. While calculating the grand total, 40 marks would be counted and not 35 marks which appellant secured originally. If the argument of the learned counsel appearing for the respondent is' accepted, this would amount to giving the benefit by one hand and taking the same away by another. The appellant only requires 5 marks and not 8 marks as held by the learned Single Judge. It was held by the Division Bench in a case reported S.Maruf Ahmad Ali, Advocate v. Punjab Public Service Commission etc. 1986 PLC (C.S.)335 which is as under; "The contention of the learned Additional Advocate-General Central 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 with- hold 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."
9. The aforementioned case was also taken before the Hon'ble Supreme Court and is reported as Punjab Public Service Commission etc. v. Maruf Ahmad Ali PLD 1988 C.S. 356. While dismissing the appeal the Hon'ble Supreme Court held as under: "The argument, as already noted, is that the rule itself prohibits the counting of the grace marks for any other purpose than an addition to the marks for the individual subjects. Here we are unable to agree. This condition, it seems, has been laid down on the assumption that by getting the grace marks for an individual subject, the candidate has already got them added in his aggregate marks in so far as his own individual case is concerned; namely, for the benefit he would have, thus, obtained in the shape of qualification for appearance for the viva voce test. But that gain by the individual had not by that stage directly affected any other candidate. Therefore, when the question of competition with another candidate is visualized by the rule, it prohibits the use of the grace marks given for the individual subject and added in the aggregate against another competing candidate. Another consideration in this context cannot be ignored while placing this condition in the form of a proviso in the rule, the rule making authority did not considered it necessary to add another proviso placing similar condition that the grace marks having been given for the individual subject, would not be added to the aggregate. 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 forming part of the total marks obtained by the candidate inclusive of the viva voce test also, shall not be usable against other competing candidates". (Underline is ours)
10. It is pertinent to mention here that in the aforesaid case of the Punjab 'Public Service Commission it was specifically provided that in calculating the position of a candidate, the grace marks would not be counted in determining the position. That rule was as under: "No candidate shall be summoned for viva voce and psychological tests unless he has obtained at least 33% 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 better position in the merit list than those successful candidates who have not been granted any grace marks.
11. However, that interpretation cannot be made applicable while interpreting Regulation 5 where there is no such condition. The grant of grace marks under clause (a) of regulation is independent and is not conditional. Apart from this there is no such condition that the grace marks so given in an individual paper under clause (a) of the regulation would not be counted while calculating the aggregate.
12. The other ground of the learned counsel for the respondent that it was the consistent practice of Islamia University, Bahawalpur not to count grace marks given in an individual paper while calculating grand total for determining aggregate and if there would be any other interpretation it would frustrate the long established practice and would cause innumerable difficulties to the University authority is devoid of any force. In support of his contention learned counsel has placed reliance upon Nazir Ahmad v. Pakistan and 11 others (PLD 1970 SC 453). We are sorry to hold that adherence to the practice of this nature would completely frustrate the very purpose of framing the regulation through which 5 grace marks are provided in an individual paper. The interpretation put up by the learned counsel for the respondent appears to be not in-consonance with the established principle of interpretation which put great emphasis on harmonizing the clauses so as to achieve the intent of the framer. The adherence to the departmental practice is contradiction in terms as already stated it would be harsh to interpret that the grace marks in an individual paper under the regulation would not be counted while calculating the grand total. At the cost of repetition we are sorry to say as already stated such type of interpretation would amount to giving by one hand and taking away another. Resultantly, for what has been stated above, we accept this appeal and set aside the order of the learned Single Judge and direct that 5 grace marks granted to the appellant under proviso (a) of Regulation 5 (i) shall also be calculated towards his grand total in determining the aggregate. There shall be no order as to costs in the circumstances.