1985 PLP 1506 (CLC)

Petitioner under Roll No.1647, appeared in a Competitive Examination held by Government of Punjab for recruitment to the posts of S.O. /E.A.C. /A.D. held in the month of May/June, 1984. Petitioner, succeeded in obtaining requisite marks in the aggregate but failed in getting pass marks in two papers i.e. English and Urdu Essay and fell short by 2 and 14 marks in these two papers. In consequence, Secretary, Public Service Commission vide its letter Annexed 'A' informed the petitioner-candidate, that he had failed to qualify in the written portion of the examination, therefore, he was not entitled to be called for viva voce and psychological tests. Relying on Notification dated 11-1-1984 as amended upto date, giving discretion to award 5 grace marks "to really deserving candidates in one or two papers", petitioner has brought his grievance before this Court in its extraordinary constitu tional jurisdiction, for issue of an appropriate writ or direction, directing Public Service Commission, to consider and award grace marks to the writ petitioner so as to enable him to qualify for viva voce and psychological tests. Report, under the signatures of Secretary, Public Service Commission, Lahore has been received and placed on file. Learned counsel, appearing for the parties have been heard. Petitioner's learned counsel strenuously urged that when a power to award 5 grace marks to "really deserving candidates" had been conferred on the Commission, the power was given and meant to be exercised by it keeping in view the facts and circumstances of each case. Refusal to exercise discretion vested in the Commission, could not be justified. He stated that when a power is given to an authority, then, the authority in whom the power vests, cannot refuse to exercise it. Learned counsel stated that exercise of discretion, though could not be regulated by this Court, yet a writ could be issued to the Commission, directing it, to perform its functions and exercise its discretion. May be the petitioner in the opinion of the Commission could not qualify to be "a really deserving candidate" yet, the petitioner was entitled to consideration of his case on merits by the Commission.

2. Learned Assistant Advocate-General, who appeared in response to a notice, to assist the Court at limine stage, has contended, that per report, the case of the petitioner alongwith others was considered by the Commission for grant of grace marks and it was decided not to award grace marks to any candidate as permissible under the rules. Matter relating to award of grace marks, lay in the discretion of the Commission and this Court in exercise of its constitutional jurisdiction, could not legitimately bind down the Commission to exercise its discretion in a particular manner. It was for the Commission alone, to judge for A itself as to whether a particular candidate, qualified for grace marks. This, in the absence of any criteria laid down in the rules, was a matter which rested in the judgment of Commission not correctible in constitutional jurisdiction. He has also referred to a decision in Writ Petition No.41 of 1984 "Malik Muhammad Razaq Tiwana v. Punjab Public Service Commission" wherein on a similar question raised before this Court, my learned brother Muhammad Afzal Lone, J., observed:- "The grievance brought by the petitioner before this Court is that Notification, dated 27-4-1982 embodies a recital that the candidates who failed to qualify in one or two papers, may be given 5 grace marks by the Commission. The petitioner's case is that there was short fall of only 2 marks in the Punjabi Essay paper and as otherwise, he was fairly high in the merit list maintained on the basis of the written test, 2 grace marks should have been allocated to him to enable him to qualify for appearance in the interview. It is discernible from the Notification relied upon by the petitioner that grant of grace marks has been left to the discretion of the Commission. It has also been admitted at the bar that the concession as to the grant of 2 grace marks was not extended by the Commission to any other candidate. It is quite obvious that the petitioner has no justiciable right, violation whereof may be challenged through invocation of writ jurisdiction. Dismissed in limine."

3. Having considered the matter thoroughly in the light of the contentions raised at the bar and the rules referred to, I find myself unable to agree with the petitioner's counsel that interference in constitu tional jurisdiction in the -circumstances of the case, could be made. Petitioner, has failed to get 33 per cent marks in each individual paper. Punjab Public Service Commission, respondent No.1 herein, considered the case of the petitioner and decided, in its judgment not to grant grace marks to any candidate. Report shows that this practice has been adopted by the Commission in respect of candidates appearing in other examinations also. Question falling for decision in the present constitutional petition is whether, Commission, could be compelled to exercise its discretionary power in favour of a particular candidate who had failed to obtain the requisite pass marks in individual papers necessary for viva voce and psychological tests. As observed, Commission was empowered to award 5 grace marks to really deserving candidates. As to who is really deserving candidate was for the Commission to decide. In the judgment which vested, in the Commission, it decided not to exercise discretion in favour of the petitioner like many others similarly placed. In the absence of any criteria determining the eligibility for grace marks the Commission, has decided not to award grace marks as a matter of principle. Constitutional jurisdiction, may not be available to compel an authority to exercise a discretion vesting in it unless it was under a clear duty to exercise it, even so, the authority is only commanded to face upto its duty and the order will still leave the Authority as free as before to decide for itself, in the matter of exercise of its discretion.

4. In view of the above I find myself in respectful agreement with the view of my learned brother Muhammad Afzal Lone, J. and I hold that the petitioner had no vested justiciable legal right commanding the Commission to award grace marks, violation of which right, could be enforced through writ jurisdiction. Petition, in these cirmcumstances, discloses no serious merit and is dismissed in limine. M.Y. H. Petition dismissed.