1986 PLP 2587 (CLC)

There is office reference in this case with regard to transfer of this case to Hyderabad Bench. Both the learned counsel for the parties jointly state that this case may be heard at Karachi. I have accordingly heard this case as jointly requested by the learned counsel. This revision application is directed against the two concurrent. judgments of the Courts below decreeing the suit of the respondents for declaration and injunction. The suit was instituted by the respondents 1 and 2 in the following circumstances:

2. The two respondents who were serving at the, relevant time as Account Clerks and Accountants in the Treasury Office at Dadu had appeared in the departmental examination held by the Public Service Commission in April, 1975. The respondent No. 1 passed in all the papers except Papers Nos. 2 and 4 while respondent No.2 failed only in Paper

4. In the month of October, 1975 Public Service Commission announced another examination for the persons serving in the subordinate accounts service. The names of the two respondents were sent to the Commission by the Treasury Office, Dadu, by letter, dated 15th August, 1975 (Exh.21). In the particulars of candidate annexed with the letter it was mentioned that the respondents Nos. 1 and 2 will appear in Papers Nos. 2 and 4 and 4, respectively only. The applicant, vide Exh.22, dated 4‑10‑1975 allowed the respondents to appear in the examination which was proposed to be held in October, 1975. It appears that the respondents in view of letter of Treasury Office, dated 15th August, 1975 appeared only in those papers which were mentioned in the particulars annexed with Exh.21. The Public Service Commission declared the two respondents as failed in the examination on the basis that they failed to appear in other papers. The respondents then instituted civil suit seeking a declaration and injunction from the Court to the following effect: ‑ "(a) Declare the plaintiffs successful (PASS) in the Sind Subordinate Treasury and Accounts Service (Accountants) Departmental Examination held in October, 75 as the plaintiffs have secured standard qualifying marks or above in all five subjects. (b) Direct the defendant to amend the result regarding plaintiffs accordingly. (c) Grant costs of the suit to the plaintiffs. (d) Grant any other relief deemed fit and proper under the circumstances."

3. The suit was resisted by the applicant who contended that as the respondents did not appear in all the papers in the examination held in October, 1975 they could not be declared as successful. With regard to the contention of the respondents that they had already obtained qualifying marks in other subject and, therefore, they were only required to appear in respect of those papers in which they had failed in the earlier examination, the applicant in its written statement took the stand that as the respondents were not 'probationer accountant' at the relevant date, therefore, the concession admissible under Rule 8 of Sind Subordinates Treasury and Accounts Service (Accountants) Departmental Examination Rules, 1967 was not available to them. The trial Court decreed the suit of the respondents holding that the act of the Commission in allowing the respondents to appear in the examination amounted to acceptance of their claim that they were only entitled to appear in those papers in which they had failed in the earlier examination held in April, 1975. With regard to rule 8 of the Sind Subordinates Treasury and Accounts Service (Accountant) Departmental Examinatipn Rules, 1967 the trial Court reached the conclusion that these rules were applicable to the petitioners and rejected the contention of the applicant which was based on a letter Exh.31, written to the applicant by the Finance Department of the Government of West Pakistan. The first appellate Court also reached a similar conclusion while confirming the judgment and decree of the trial Court. The only contention raised in this revision by the learned counsel for the applicant is that under Rule 8 of the West Pakistan Subordinate Treasury and Accounts Service (Accountants) Departmental Examination Rules, 1967 only a probationer is entitled to the concession of appearing only in those subjects in which he had earlier appeared and failed to obtain qualifying marks. The contention raised by the learned counsel for the applicant proceeds on the assumption that the respondents were not probationers as defined in the rules. Although it is not specifically pleaded by the respondents in their suit before the trial Court that they were probationers as defined under the rules but this contention was indirectly considered by the Court with reference to Rule 6 of the Rules of 1967. From the written statement filed by the applicant in the suit it is quite clear that it was not denied specifically that the respondents were not probationers as defined in rules but reliance in this connection was placed by the applicant on the copy of the letter, dated 1st September, 1976 written by the Finance Department to the commission in which was stated that the respondents were not entitled to the concession of Rule 8 as they were not 'probationer accountants' on the relevant date. It will be useful to refer at this stage the definition of probationer as given in Rule 3(e) of the aforesaid Rules. It reads as follows:‑ "(3)(e) Probationer means a person appointed on probation to a post in accordance with the provisions of sub‑rule (1) of Rule 8 of the West Pakistan Subordinate Treasury and Accounts Service Rules, 1962; and" A reading of the above definition of the provision will make it clear that a person who is appointed on probation to a post in accordance with the provisions of sub‑Rule (1) of Rule 8 of the West Pakistan Subordinate Treasury and Accounts Service 'Rules, 1962 is within the contemplation of this definition in so far the rules of 1967 were concerned Rule 8 which allowed a concession to a probationer to appear only in those subjects in which he had foiled to obtain qualifying marks makes no distinction between a probationer or a probationer accountant. It will be useful to reproduce here Rule 8 of the Rules of 1967, which reads as follows:‑

8. Re‑examination of failures‑‑ A probationer, who failed to secure the minimum number of marks prescribed under Rule 7 in any subject may subject to the provisions of Rule 6, appear in that subject at a subsequent examination." A reading of the Rule 8 will clearly bear out that it was applicable to the case of all probationers who failed to secure the minimum number of marks prescribed under Rule 7 in any subject and could appear in that subject at a subsequent examination. Of course, subject to Rule 6 which restricted the number of attempts in respect of probationer and promotees. The contention raised by the learned counsel for the petitioner in this revision clearly over looked that this aspect of the case that the respondents Nos. 1 and 2 were probationers or not was not directly raised before the Courts below and as such it could not be examined. It is true that the application of Rule 8 to the respondents was extended on consideration which could not be upheld but it is equally true that the Courts below did not have the opportunity of examining the cases of the respondents with reference to the definition of a 'probationer' as given in Rule 3(e) of Rules of 1967. Whether Rule 8 of the aforesaid Rules applied to the cases of respondents or not depended on a finding that they were probationers or not within the meaning of Rule 3(e) of the Rules of 1967. It was only in the event of a negative or a positive finding on this issue that the application of Rule 8 to the cases of the respondents could be determined. The defence taken by the applicant in its written statement to show that Rule 8 was inapplicable to the cases of respondents was that they were not serving as a 'probationer Accountants' at the relevant time was based on a misconception of the relevant rule. As this important aspect of the case escaped consideration by the Courts below I accept this revision application, set aside the judgment of the Courts below and remand the case back to the trial Court to determine this aspect of the case after framing proper issue and if necessary to allow the parties to lead evidence. There will be no order as to costs. H . B . T . Revision accepted.