P L D 1988 Supreme Court 356 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through leave of the Court is directed against Judgment dated 30‑9‑1985 of the Lahore High Court; whereby respondent's Intra Court Appeal arising out of the dismissal of his Constitutional Petition, was allowed.

2. The facts giving rise to the appeal are; that the respondent appeared in the Competitive Examination for the posts of Civil Judges held in February, 1985. He failed . to get qualifying marks in one written paper. He also failed to obtain the qualifying marks in the aggregate, therefore, was not found eligible to appear for the viva voce and psychological tests. Under the relevant rule, the concerned authority could grant upto five grace marks in one or two individual papers. The respondent sought the grant of one mark/for the paper in which he had failed by one mark. If he had been granted that one mark and the so added mark would have also been counted towards the aggregate, he would have qualified for appearance in the viva voce and psychological tests. This submission, it seems, did not find favour with the relevant authority for the reason that although one mark could be granted to him for the subject in which he had failed to get the qualifying marks and thus that condition could be satisfied, but the second condition regarding aggregate would still remain unsatisfied; because this addition of mark/s for individual subject could not increase the aggregate.

3. The respondent sought relief in the Constitutional Jurisdiction of the High Court. His Writ Petition was dismissed by a learned Single Judge mainly on the ground that the departmental construction of the relevant rule for a , considerable time, went against the respondent's plea. He having filed an Inter Court Appeal, it was allowed on the main ground that when the so‑called grace marks are added in respect of an individual subject, they would automatically count for the aggregate also. A writ was, accordingly, issued.

4. Leave to appeal was granted to examine the following contention advanced from the appellants side: "that the only concession which the rule permits to be given to a candidate is the grant of upto 5 grace marks in one or two papers. He submitted that the rule does not at all envisage that the additional grace marks can also be taken to count towards making up the deficiency in the aggregate of 50$ marks. He submitted further that if the view taken by the High Court is upheld, it shall cause great hardship in the case of candidates who have obtained more than 33$ in each individual paper, but their aggregate is less than 59$. In support of his contention that the rule envisages only one benefit i.e. the grant of 5 grace marks and that it was meant only to enable him to obtain the pass marks (i.e. 33$ in each individual paper), he pointed out that the rule provided that grace marks can be given to deserving candidates only in one or two papers. From this he wants the Court to conclude that such grace marks cannot be counted towards any improvement in the aggregate of the marks obtained by him."

5. The relevant rule, which admittedly governs the case, is reproduced below:‑ "Note: No candidate shall be summoned for Viva Voce Test unless he has obtained at least 33 per cent marks in each individual written paper and 50 per cent 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 fA'`V not entitle the grantee to have a better position in the merit list than those successful candidates who have not been granted any grace marks. No candidate shall be considered to have qualified in the examination unless he also obtains at least 50 per cent marks in Viva Voce. Failure in or absence from Viva Voice shall mean that the candidate has failed to qualify for appointment and his name will not be included in the merit list.

6. The chart of marks obtained by the respondent taken from the leave granting order is also reproduced below:‑ "Compulsory subjects Maximum Marks marks obtained

1. English General and English Essay. 100 45

2. Urdu General and Urdu Essay. 100 32

3. General Knowledge including Every‑day Science. 100 56

4. Civil Law‑I 100 54

5. Civil Law‑II 100 50

6. Criminal Law 100 43 Optional Subjects

1. Islamic History (Part‑1) 100 58

2. Islamiat 100 61 One mark for this subject under the above‑quoted rule. The respondent wanted further to get that mark added in the aggregate. It is admitted that the respondent had failed to get the qualifying aggregate marks, which are 49.87 per cent and are thus less than 50 per cent by .13 per cent.

7. Although we could have dismissed this appeal on the ground that the refusal to grant the so‑called grace mark to the respondent on the sole ground that he would not be benefited by such an order, because he would not be able to get that mark added to the aggregate amounts to refusal to exercise jurisdiction conferred on the relevant authority. It is so particularly, when it is not the case if the learned Advocate‑General appearing before us in support of this appeal that the respondent did not deserve this mark on the touchstone of the condition laid down in the relevant rule in this behalf; namely, that he has to be a "really deserving candidate". In this respect, to be fair to the respondent, the learned Advocate- General brought to our notice that, on merits, the respondent, when permitted to appear conditionally for viva voce test, not only qualified therein, but also when competing with others, had obtained such a position that he became eligible for an appointment as a result of the examination. However, such a disposal of the appeal would have been on a hyper‑technical ground which has to be avoided.

8. Coming to the arguments regarding interpretation of the rules advanced by Mr. Khalil Ramday, the learned Advocate‑General, who had himself appeared at the leave granting stage, he has reiterated the same contentions which he had raised earlier and have been noted above. In addition, he has also contended that the departmental construction of the rule so far consistently adopted, should not be departed from unless, of course, the contrary interpretation is the only possible interpretation. Lastly he contended that even the rule itself contains a guidance inherent in it for its interpretation; namely, that if the grace marks added to the subject do not entitle the candidate to compete on the basis of that addition with the other candidates, he cannot take advantage of the same by seeking a similar relief by getting those marks added to the aggregate.

9. It is true that the rule itself does not specifically say that when granting the marks thereunder in respect of an individual subject, they shall also be added in the aggregate; but as thought by the High Court, the language of the rule clearly implies that if the marks are granted for an individual subject, the said subject being a part of the aggregate of subjects, would carry the added marks for the counting of the aggregate marks also. This by itself, we agree, would not be sufficient to uphold the High Court judgment.

10. The general argument of the learned Advocate‑General regarding departmental construction of a rule, insofar as it goes, has been accepted in so many cases; but it all depends upon the nature of the conflicting interpretations as also the consistency of the practice amongst other elements in this behalf. The most important being that, if the interpretation which comes in conflict with the departmental construction is found to be the only reasonable interpretation, the departmental construction, would ordinarily give way to the corrected interpretation. With regard to the consequences, the Court and or the legislature would take such measures as might be admissible. This aspect also would not be enough for the Court to decline the examination of the relevant rule for its interpretation.

11. The next argument of the learned Advocate‑General on face undoubtedly appears attractive. The words in the rule relied upon by him are: "provided that such grant of grace marks shall not entitle the grantee to have a better position in the merit list than those successful candidates, who had not been granted any grace marks" . 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 insofar 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 strictly affected any other candidate. Therefore, when the question of competition with another candidate is visualised 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 p1aoing this condition in the form of a proviso in the rule, the rule‑making authority did not consider 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 it 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. The method to be used in this respect would be that although the grand total of the marks obtained by the candidates would include the grace marks not only for the individual subject, but also for the aggregate, but the grace marks would be deducted for the stage when the candidate getting the grace mark is considered in competition and juxtaposition with other candidates. The learned Advocate‑General expressed an apprehension that this interpretation would affect other rules, directions and practice of the Government in different fields for example that of seniority. Those cases are not before us. This interpretation, it is clarified, is only for purpose of the competition and the appointment simpliciter as a result thereof. The other question/s would be examined as and when they arise.

12. It may be noticed here that during the arguments a question arose whether the grant of so‑called grace marks is an act of mercy and or bounty only; or, the grant of such marks is according to the rule itself linked with the merit of the candidate. With respect we do not agree with the observation of the High Court in the operative part of the impugned judgment, where it observed that if the concerned authority "graciously grant one grace mark that shall be counted making the appellant eligible for viva voce examination which incidentally he has passed " We will substitute the phrase by observing that "when ‑ the authority concerned grants one mark ... . . . . . . . . . . " What has influenced us in this behalf is the language used in the rule itself; namely, that such grace marks will be given only "to really deserving candidates". It cannot at all be said that the performance of a candidate at the examination is not that most relevant consideration in determining whether he is or is not a really deserving candidate. Beyond that we would not make any comment in this case.

13. The only remaining argument advanced by the learned Advocate‑General, to say the least, is hypothetical. According to him, there might be cases in which a candidate has passed in all the subjects but has failed to obtain the qualifying aggregate marks; namely, 50 per cent. And the deficiency is also of the number of marks mentioned in the rule, which can be given for individual subject. The rule, as it stands, the argument further goes, does not permit the grant of marks for addition to the aggregate only unless, if so interpreted, it is first given for the individual subject. Thus an anomaly has been pointed out‑‑while one who fails, as in the present case, in a subject and also gets a mark less in the aggregate, would become entitled for the viva voce test, but a candidate who has passed in all the subjects but gets a mark less in the aggregate, would not qualify for appearance in the viva voce test. We appreciate the anxiety expressed by the learned Advocate‑General, but this is of no help to him insofar as this appeal is concerned. The normal, natural and fair way‑out of this defect is to amend the rule so as to permit the addition of similar so‑called grace marks for a case visualised by the learned Advocate‑General. This would not only remove the anomaly, but also be beneficial for the sake of another class of, if we may say so, "really deserving candidates".

14. With the foregoing discussions and observations this appeal is dismissed. There shall be no order as to costs. '9 . B . A . /P‑41/ S Appeal dismissed.