2002 PLP (C (PLC(CS))

3. On admittance of the appeal, the respondents submitted their written objections/comments separately. It was not denied in the comments that the appellant had as many as 19 good entries in service record. The appearance of the appellant in the relevant examination was also admitted. However, their stance was that he appellant "had failed to qualify the said departmental examination". 4.? I have heard learned counsel for the parties and perused the record.

5. The appellant had made specific assertion in para.2 of the memo. of appeal that "he had successfully sailed through the examination but when result was being compiled, some interested persons got Drill‑sheet misplaced with mala fide intention with the result that the marks obtained by him in that paper were excluded" and he was thus shown to have failed in the examination for entry in List B‑I. This assertion was reiterated in sub?para.(ii) of the "grounds" in the following words:‑‑ "that the appellant's Drill‑paper was got misplaced by some interested person in the office with the result that he was shown to have failed in B‑I List Examination."

6. The respondents submitted their comments separately but a perusal thereof would show and show clearly that those were verbatim copy of one another. It was not their case that the Drill‑paper or its result sheet, was never misplaced or lost and that the appellant had obtained only these many marks and had thus failed. Their reply that the appellant had "appeared into examination of list B‑I held on 25‑6‑1998 but failed to qualify the said departmental examination" was prevaricatory. It was ruled in 2000 T.D. (Service) 356 that an assertion of facts made in the memo. of appeal before the Tribunal would be believed as correct if it is not specifically and clearly denied by the other side.

7. The appellant had the audacity to make the same allegation in his departmental representation, which was duly forwarded by the S.S.P. Sheikhupura to the D.I.‑G. Lahore Range, Lahore vide covering letter dated 16‑5‑2000 (Annexure‑B to the memo. of appeal) with the following remarks:‑‑ "Enclosed kindly find an application submitted by Constable Ghulam Rasool No. 1020, of its district seeking admission of his name to promotion list 'B-I' for necessary action." Had there been no truth in the allegations made by the appellant, the Senior Superintendent of Police like Mr. Ghulam Muhammad Kalyar, would not have forwarded the same to the D.I.‑G. in the above terms. The appellant is a constable and would ordinarily shiver in his Shoes while appearing before his S.S.P. with an application which may have contained false allegations against his own office. Undoubtedly, the matter involved a factual controversy and indeed necessitated a full‑fledged inquiry in terms of the law laid down in PLD 1964 SC 302 and PLD 1987 SC

307. However, nothing of the sort was done by either of the respondents at any stage.

9. The record relating to Drill‑paper was not produced even today. The Service book showed as many as 19 good entries at he credit of the appellant. Having been found eligible by all standards, he was allowed to take the competitive examination to "Select Constable" for List B‑I in District Sheikhupura at the relevant time. It was the duty of the respondents to have properly secured the record particularly when the appellant had disputed the non‑inclusion of his name in the list of successful candidates. They did not produce the relevant record either at the time of submission of the written comments or during the course of arguments before this Tribunal despite the fact that time was taken specifically for the purpose. Adverse presumption could, therefore, legitimately be drawn against them and in favour of the appellant. Mr. Muhammad Nawaz Tauri, Inspector Legal, Sheikhupura appearing on behalf of the respondents rather admitted that they did not have the relevant record with them. 9‑A. In University of the Punjab v. Dr. Muhammad Aamer Ijaz (1999 SCMR 49) where some pages of the answer‑sheet were found missing, it was held that the examinee should not suffer and that he would be entitled to the grant of average marks (61 marks in that case). The same rule can be aptly invoked in the circumstances of this case.

10. In the light of what has been discussed and observed above, the plea of the appellant that he had passed the relevant examination for entry in list 'B‑I' held in District Sheikhupura on 25‑6‑1998 and that the record result ?sheet relating to Drill‑exercise, having been maliciously misplaced, he was wrongly shown to have failed, is held to have emerged unscathed. Accordingly, the appeal is allowed and the appellant is declared entitled to entry in List B-I as a result of competitive examination held on 25‑6‑1998 in District Sheikhupura. A direction shall issue to S.S.P. Sheikhupura (respondent No. 1) to enter the name of the appellant in List B‑I and send is record to the S.S.P. Lahore under whose control the appellant has since been transferred with new F.C. No. 436, within a period of one month. The D.I.‑G. Lahore Range, Lahore (respondent N0.2) will then send the appellant for doing the Lower School Course, next.

11. There shall‑be no order as to costs. H.B.T./43/P (Sr. Trib.)? ?????????????????????????????????????????????????????????????????????? Appeal allowed.