2003 PLP (C (PLC(CS))

CH. IJAZ AHMAD, J.

We intend to decide the following Intra-Court appeals by one consolidated judgment having similar facts and law and arising out of the same judgment of the learned Single Judge dated 13-6-2001. 1.

1. C.A. No. 606 of 2001. 2.

1. C.A. No. 596 of 2001.

2. The brief facts out of which the aforesaid appeals arise are that respondent No.2 invited applications for three posts of Assistant Professors in Anatomy in the Health Department of Government of the Punjab through advertisement dated 21-12-1997 published in daily "Nawa-e-Waqt". Respondent No.2 issued call letters to appellant Dr. Neelam Hussain, respondent No. 1 Dr. Razia Parveen Qureshi and three others. Respondent No.2 recommended the name of Dr. Neelam Hussain for appointment against one of the posts in question vide letter dated 18-2-1998 on the basis of the marks she obtained in the interview although appellant and respondent No. 1 secured a total of 69 marks on account of evaluation of the academic record, experience, research papers and the interview. Respondent No. 1 being aggrieved filed W.P. No. 4017 of 1998 which was accepted by the learned Single Judge vide judgment and order dated 11-5-1999. Present appellants being aggrieved filed I.C.A. No. 457 of 1999 and I.C.A. No.455 of 1999 which were accepted by the Division Bench of this Court vide judgment dated 31-10-2000 and the case was remanded to the learned Single Judge for disposal afresh in accordance with law. The learned Single Judge after remand accepted the writ petition of respondents No. 1 vide impugned judgment dated 13-6-2001. Hence the aforesaid Intra-Court appeals.

3. Learned counsel for the appellants submit that learned Single Judge has misread and misconstrued paragraph 13(b) of the Policy Decision No.21 by awarding 0.5 marks to respondent No.

1. They further submit that if paragraph 13(a) and (b) be read as a whole then para. 13(a) relates to the relevant qualification in relevant field and para 13(b) only relates to additional qualifications. Therefore, learned Single Judge erred in law to award 0.5 marks to respondent No.1 qua diploma in Gynae. They further submit that judgment of the learned Single Judge is not sustainable in the eye of law on the ground that a qualification false outside medical field and pertains to improvement of appellant's skill and is acceptable in terms of sub paragraph ii as Post-Graduate Diploma in Computer Science and Bed, etc. They further submit that policy decision of respondent No.2 is only the internal arrangement of respondent No.2 to conduct the interview and test. The policy decision cannot take the status of Rules and Regulations framed under the Statute. Policy decisions are only guidelines for respondent No.2 to evaluate qualifications performance of the candidates but this aspect of the case was not considered in its true persecutive by the learned Single Judge in the impugned judgment. They further submit that departmental practice has attained the status of Rules but this aspect of the case was not considered in its true perspective by the learned Single Judge in the impugned judgment. In support of their contentions they relied upon the following judgments:-

1. Nazir Ahmad v. Pakistan and 11 others (PLD 1970 SC 453).

2. Messrs Radaka Corporation v. Collector of Customs (1989 SCMR 353) They further urge that learned Single Judge decided the controversy without adverting to Rule 2(2) of Punjab Public Service Commission (Functions) Rules, 1978 wherein the word test is defined in tile following terms:-- "Test includes written examination. Psychological test, appraisal of record, interview and viva voce." The post in question was filled by respondent No.2 on the basis of oral interview. Therefore learned Single Judge erred in law to rely upon para. 5 of the Policy Decision No.22. They further urge that para. No.4 of the Policy Decision No.22 is applicable in the present case and para. 13(b)(ii) read with Note clearly envisages that respondent No.1 was not entitled to 0.5 marks which was granted by the learned Single Judge in Constitutional jurisdiction which is not permissible in the eyes of law. They further urge that judgment of the learned Single Judge is not sustainable in the eyes of law in view of Regulation 2(n) meaning of test, 2(o) written examination, 2(p) Viva Voce interview and 2(q) policy decisions.

4. Learned counsel for respondent No. 1 has given following break up of the marks of appellant Dr. Neelam Hussain and respondent No. 1 Dr. Razia Parveen Qureshi to resolve the controversy between the parties:-- Description Appellant's marks Respondent No. 1's marks Qualification 33 33 M. Phil 2 2 Experience 2 1 Research Nil 3 Interview 18 14 Total: 69 69 He further submits that Policy Decision No.21 para. 13 Grade 1(a) clearly relates to higher qualification in the relevant subject whereas para. 13 Grade 1(b) deals with additional qualification. He further urges that case of the respondent falls either under category iv of clause (a) above or falls under category ii of clause (b) above. Therefore, learned Single Judge was justified to grant 0.5 marks. He further urges that respondent No.2 mala fide did not award 0.5 marks of qualification of respondent No. 1 qua gynae which is not qualification of M. Phil. He further urges that respondent No.2 had awarded 18 marks in viva voce to appellant and awarded 14 marks to respondent No. 1 mala fide in spite of the fact that respondent No. 1 secured high marks in subject evaluation and research papers. Therefore, learned Singe Judge was justified to award 0.5 marks in terms of aforesaid policy decision of respondent No.2. He further submits that selection was not made purely on the basis of interview. The respondents awarded hundred marks qua the test and interview in the following terms:-- Academic 50 marks Evaluation subject specialist 25 marks Interview 25 marks He further submits that Policy Decision No.22 must be read as a whole keeping in view the contents of paras. 4, 5 and 6 which envisage that learned Single Judge was justified to accept the Constitutional petition of respondent No.1. He further submits that Intra-Court appeals are not maintainable.

5. Mr. Muhammad Hanif Khattana, learned Addl. A.-G. submits that Government of the Punjab is a pro forma respondent in both the Intra-Court appeals. The respondent Government of the Punjab has implemented the recommendations of the Public Service. Commission and in case the recommendations of the Public Service Commission would be set aside by this Court then the respondent Government shall act according to decision of this Court. He further submits that private respondent Dr. Razia Parveen is working under respondent No.2 as Assistant Professor on current charge basis.

6. Learned counsel for the appellants in rebuttal submit that appellants filed I.C.A. No.455 of 1999 and I.C.A. No. 457 of 1999 against the order dated 11-5-1999 passed by the learned Single Judge in the earlier round of litigation which were accepted by the learned Division Bench of this Court vide judgment dated 31-10-2000 after taking into consideration the question of maintainability. That judgment of the learned Division Bench was not challenged by either of the parties before the Honounable Supreme Court. Therefore, the same is final between the parties.

7. We have considered the contentions of the learned counsel of the parties and perused the record ourselves.

8. We would like to decide the preliminary objection first. It is admitted fact that present appellants filed aforesaid Intra-Court appeals in the earlier round of litigation which were accepted by, the Division Bench of this Court vide judgment dated 31-10-2000. The point of maintainability was raised and decided in favour of the appellants. It is also admitted fact that either of the party had not challenged the vires of the judgment of the Division Bench dated 31-10-2000. Therefore, objection of learned counsel for the respondent No. 1 has no force as the judgment of the Division Bench attained finality in view of the law laid down by the Honourable Supreme Court in PLD 1987 SC 145.

9. It is better and appropriate to reproduce relevant provisions of Punjab Public Service Commission Ordinance, 1978, Punjab Public Service Commission (Functions) Rules, 1978, Policy Decision No.21, Policy Decision No.22 and Punjab Public Service Commission Regulations, 1998. "

10. Rules. The Government may, by notification in the official Gazette, make rules for carrying out the purpose of this Ordinance. (2) Subject to the provisions of this Ordinance and the rules the Commission may make regulations for carrying out the purposes of this Ordinance and the rules." "3(1) The Commission shall conduct tests and examinations and take all steps ancillary thereto for the recruitment to (1) the Provincial Services and civil posts connected with the affairs of the Province falling in Grades 16 to 22 except those specified in Schedule 1; (ii) .............................. (iii) .............................. "

13. Where 10 marks are allocated to co-curricular activities and a candidate should not secure more than 10 marks. In all, the distribution of marks to groups total up to

16. To bring this to 10 following regrouping are made. Group 1 Higher and Additional Academic Qualification Max : 5 Marks (a) Higher Qualification In the Relevant Subject Max 4 Marks Higher qualification requiring study and/or research spread over a period of one or more-academic years, including:-- (i) Post-Graduate Medical Degree i.e. F.C.P.S., M.R.C.P. 4 Marks F.R.C.S. or equivalent degree determined by PMDC or Ph. D.DSc, in Social/Pure Sciences, And basic subjects of Medicine and Languages. (ii) M. Phil/M.Sc. (12 years course) in Clinical or Basic 2 Marks Subjects/Post Graduate Medical Diploma, Or M. Phil in Social/Pure Sciences, Languages, LL. Metc. (iii) M.A./M.Sc. LL.B, where B.A./B.Sc. is prescribed. 1 Mark (iv) For a diploma or graduate level higher qualification requiring study and/or research spread over one or more academic years including Diplma/Certificate in teaching and ward administration. 0.5 Mark (b) Additional Qualification Max. 1 Mark (i) For a Post-Graduate Degree in a subject either related or not related to the speciality concerned but obtained after 2 years of study. 1 Mark (ii) For a Post-Graduate Diploma in a subject either related or not related to the speciality concerned but obtained after one year's study like Post-Graduate Diplama in Computer Science, B.Ed. etc. 0.5 Mark Note. Where Post-Graduate Degree like D.Sc./Ph.D/M. Phil/F.C.P.S. are prescribed as the basic qualification for a post, the candidate possessing lower Diploma like M.C.P.S., in the speciality will not be entitled to any mark on account of additional qualification. Similarly, a candidate acquiring a Post-Graduate Degree or Diploma in the same speciality from two separate institutions will not be entitled to any additional marks for the second diplima/degree." "Merit lists will be prepared strictly on the basis of final awards obtained by the candidates'. In written examination final awards will consist of marks, of written examination, psychological test and interviews. However, in other written test cases, 10% of the marks obtained in the test will be added in the interview marks for drawing up the final merit list. If the required number of candidates do not qualify in the particular zone, such vacancies will remain unfilled and will be added in the next requisition/advertisement.

2. In case where the various posts belonging to the same service/cadre but in different subjects (such as those of Lecturers) are advertised in one lot, separate merit lists in each subject shall be prepared.

3. Their combined merit list for purposes of inter-se-seniority shall be prepared in accordance with the respective merit of each candidate based on the total marks obtained by the candidates on which the final list is prepared.

4. Where selection is by interview in which more than one candidate gets equal marks in the aggregate the candidate who obtains more marks in interview shall be placed higher.

5. If marks in the aggregate and interview are the same, then the older candidates should be placed above the younger one.

6. In case of all the above conditions being equal the selected candidate will be placed higher in the following order: (a) Marks awarded by the Member(s). (b) Marks awarded by the Advisor (s) and Departmental Representative.

7. In case of all the above conditions being equal the selected candidate with higher marks in the minimum/basic qualification such as M.B.B.S., B.Sc. (Agri.) B.Sc. (Engg), M.A./M.Sc. etc. prescribed for the post, will be placed higher."

2. In these Regulations, unless the context otherwise requires.-- (a) .................... (b) .................... (c) .................... (d) .................... (e) .................... (f) .................... (g) ..................... (h) .................... (i) .................... (k) .................... (l) ................... (m) .................... (n) "Test" has the same meaning as assigned to if in rule 2(2) of the Punjab Public Service. Commission (Functions) Rules, 1978, and includes short-listing, screening (written) test, attitude/psychological test, subject-test (relevant to post and its qualifications) or any other test or examination in writing and interview or viva voce designed to assess the capabilities of applicants for their fitness for the jobs)/post(s) applied for by them. (o) "Written Examination" means an examination prescribed by Government for specific jobs in the relevant Service Rules/general policy. (p) "Viva Voce/Interview" means an oral examination to assess, besides potential of a candidate as a Civil Servant, comprehension of the field of knowledge relevant to the job applied for, his general knowledge, personality and character. q. "Policy Decisions" means decisions taken by the Commission in furtherance of these Regulations laying down detailed rules of procedure for various activities of the selection process which shall be complied in the Manual of Policy Decisions."

10. It is better and appropriate to highlight certain principles of interpretation of statute which are attracted in the present case to resolve the controversy between the parties.-- (i) The Courts cannot supply casus omissus, meaning thereby Court is not competent to fill up omission on part of legislature as per principle laid down in Muhammad Ayyub v. Abdul Khaliq (1990 MLD 1293). (ii) If the language of the enacting part of the statute does not contain the provisions which should occur in it, then Court cannot derive those provisions by implication in the statute as per law laid down by the Privy Council in Governor General of Council v. Municipal Corporation Madras (PLD 1948 PC 211). (iii) A Court has no powers to fill any gaps disclosed in an enactment. In arriving to this conclusion, we are fortified by the law laid down by this Court in Khizar Hayat etc. v. Commissioner, Sargodha (PLD 1965 Lahore 349). (iv) It is not within the domain of the Court to depart from the plaint by meaning of the. expression used in the statute as per law laid down in Rehmat Khan's case (1993 C.L.C. 412). (v) The pith and substance of the enactment should be considered to find out its true nature and character as per principle laid down by the Honourable Supreme Court in Shamim-ur-Rehman's case (PLD 1983 SC 457). (vi) Intention of legislature is primarily gathered from language used by legislature in the contents of statute as per law laid down in Iqbal Muhammad Khan's case (1992 PLC 549). (vii) The best rule of interpretation is plain reading of provision of statue as per principle laid down in Trustee of Fort of Karachi's case (1990 PLC 197). (viii) It is also settled principle of law that law cannot be interpreted in different way simply on the ground of hardship and that intention of statute must he gathered from plain and unambiguous expression used therein than from any notion as is held in Muhammad Ayyub's case supra. (ix) The ejusdem generis doctrine means that where general words immediately follow or closely associated with specific words their meaning must be limited by reference to the preceding word as per principle laid down in Don BASCO High School v. The Assistant Director, E.O. B.I. and others (PLD 1989 SC 128).

11. Now we intend to highlight importance of the punctuation mentioned in the statute, instructions and policy decisions. Statutory Interpretation by Francis Bennion highlighted the importance and status of the punctuation in the following terms:-- (i) The headings, marginal notes and punctuation of a statutory instrument must necessarily therefore be treated as being as much part of the instrument as any other component. To avoid an unjustified distinction (never drawn in practice), the same must be taken to be true of an Act ....Even in modem Acts, the presence or absence of commas can make a difference to the legal meaning. (ii) "The way an enactment punctuate may assist in determining whether it is to be read distributively, though this cannot be relied on. " (iii) The Pakistani Courts will like to take the Act by the four corners in order to ascertain its meaning and look to the punctuation to ascertain interpretation reasonable and consistent with the statute, as per principle laid down in Zubair Ahmad v. Sindh Labour Appellate Tribunal Karachi (PLD 1985 Kar. 760) and Messrs New Jubilee Insurance Co. Ltd v. Enquiry Officer, War Risks Insurance and another (1985 SCMR 1317). Likewise Courts in Indian jurisdiction would not like to disregard it because there is no unpunctuated original statute in India as held in Taylor v. Charles Bleach (1914) ILR 37 Mad 113, 115). (iv) In any event, when there is no inconsistency, absurdity or ambiguity in a statute as officially printed and punctuated, the Court will not give it a different meaning by changing the punctuation. In arriving to this conclusion, we are fortified by the law laid down in Rocca v. Boyle (166 Col 94) and American Jurisprudence Vol. 50 pages 250 & 253. (v) The position of the comma here is extremely importance as held in Committee of Fruit Marketing v. Collins (1925) 36 C.L.R. 410, 421 and Mian Muhammad Nawaz Sharif's case (PLD 1993 SC 473). (vi) If the punctuation is in accord with the suggested meaning of the statute, it is an important additional reason for the acceptance of that meaning. (vii) The punctuation in the statute should not be ignored. In arriving to this conclusion, we are fortified by the law laid down in Thakur Jaikrit Singh and others v. Sohan Raj (AIR 1959 Rajisthan 64), Mian Muhammad Nawaz Sharif's case (PLD 1993 SC 473). In para 13 (b) (ii) of Policy Decision No.21 contain the following words:-- "For a Post-Graduate Diploma in a subject either related or not related to the speciality concerned but obtained after one year's study like Post-Graduate Diploma in Computer Science, B. Ed. etc." (underline is ours). The meaning of the words etc. The word etc. would have to be given its ordinary dictionary meaning as per principle laid down by the Honourable Supreme Court in Dr. Habib-ur-Rehman's case (PLD 1973 SC 144). Meaning of the word etc. according to the Kitabistan Dictionary is as follow:-- "Etc. means and so on and others of the same type." The meaning of the word etc. according to the Black's Law Dictionary Sixth Edition is as follows:-- "An others; and other things and others of like character; and others of the like kind; and the rest; and so on; and so forth, This phrase is frequently affixed on one of a series of articles or names to show that others are intended to follow or understood to be included. So, after reciting the initiatory words of a set formula, or a clause already given in full, etc., etc is added, as an observation, for the sake of convenience. And other things of like kind or purpose as compared with those immediately therefore mentioned. The meaning of etc. is fully covered by the legal maxim the ejusdem generis doctrine which means whether general words immediately followed or closely associated with specific word, their meaning must be limited by reference to the preceding word as per principle laid down by tile Honouable Supreme Court in Don Basco High School v. Assistant Director E.O.B.I. (PLD 1989 SC 128). In this view of the matter, any diploma secured by any person must be in terms of Diploma in Computer Science B.Ed. In the present case, the respondent secured a Diploma in Guiney, therefore, same is not synonymous or in accordance with the Computer Science or B.Ed. therefore, learned Single Judge erred in law to grant 0.5 marks which is not in accordance with the plain reading of the aforesaid paragraphs. It is settled principle of law that plain meaning be given weight by interpreting the provisions of law or instructions of the policy decisions. Coupled with the principle of departmental practice which means where departmental practice had followed as particular course in implementation of some rule whether right or wrong, it would be extremely unfair to make a departure from it after a lapse of many years and thereby disturb right that has been settled by a long and consistent course of practice. In arriving to this conclusion, we are fortified by the law laid down in Messrs Radaka Corporation v. Collector of Customs (1989 SCMR 353) and Nazir Ahmad v. Pakistan and 11 others (PLD 1970 SC 453). We are also fortified by the following judgments qua the aforesaid proposition of law:-- Miss Adeeba Zakiya v. Deputy Director (1984 CLC 1331) Altaf Ahmed Asmat v. Sarfaz Hussain (1984 CLC 1308). The United Netherlands Navingation v. The Commissioner (PLD 1965 SC 412) Mt. Karmon v. Jowand Singh and others (AIR 1931 Lahore 320).

12. The regulation and instructions were issued by the competent authority to hold competative examination therefore, having a force of law. In arriving to this conclusion, we are fortified by the law laid down by the Honourable Supreme Court in Dr. Habib-ur-Rehman's case (PLD 1973 S.C. 144). The relevant observation is as follows:-- "A scrutiny of the relevant files produced by the Provincial Government, leaves no doubt that the letters in question were issued by the Provincial Government after consultation with the Public Service Commission. The subject mentioned in these letters was "Recruitment Rules to various posts", or "Recruitment Rules for various services/posts allocation of marks for academic/service records and for viva voce in initial recruitment cases." The intention of the Provincial Government was, therefore, clearly to prescribe recruitment rules in sufficiently precise, and yet general terms, so as to form part of recruitment rules applicable to various posts and services for initial recruitments made on the basis of an oral interview alone. There is, therefore, no reason to think that the letters were not in the nature of rules made under the rule making power conferred on the Provincial Governor in terms of Article 178 and Article 186 of the 1962 Constitution. " We therefore, consider that the instructions embodied in the letters relied upon by the appellant are in the nature of rules made by the Governor of West Pakistan acting under Article 178 read with Article 186(2) of the 1962 Constitution. It would not, therefore, be correct to regard these letters as being only in the nature of instructions for the internal and indoor management of the Public Service Commission. It appears to us, therefore, that the stand taken on behalf of the appellant is correct, namely, that instructions embodied in the relevant letters issued by the Provincial Governor to the Public Service Commission are in the nature of statutory service rules and would ordinarily be blinding on the Public Service Commission in the matter of assessing the merit of the competing candidates and formulating its recommendations on the basis of oral interviews for recruitment to high technical posts." This Court has amply jurisdiction to entertain the writ petition in case the action of the appellant/commission is not in accordance with the policy decision as per law laid down by the Honorable Supreme Court in Dr. Habib-ur-Rehman's case supra. The relevant observation is as follows:-- "Although we have remarked that the rules are to be regarded as being directory in nature and a disregard 'thereof would not necessarily vitiate the recommendations made by the Public Service Commission, yet it is clear that all statutory bodies and functionaries are under an obligation to act in accordance with law and relevant rules, and a deliberate or flagrant disregard thereof would render their acts without lawful authority so as to attract the power of judicial review vesting in the superior Courts." Similarly, the learned Single Judge erred in law to rely upon para. 5 of policy Decision No.22. It is settled principle of law that policy decision must be read as a whole. In case the interpretation of the learned Single Judge is accepted then para 4 of the aforesaid decision has become redundant. It is pertinent to mention here that the case falls under para 4, therefore, para 5 would not play role in the present case in view of the circumstances and facts of the present case. In view of what has been discussed above, these Infra-Court appeals are accepted with no orders as to costs. S.A.K./N-313/L Appeal accepted.