1998 PLP 435 (CLC)

"The provision deals with candidate's ineligibility or his right to be summoned. It has nothing to do with the power of the Commissioner. The provision is independent and distinct. The second provision is that grace marks may be given by the Commission in one or two papers. But it is subject to the condition that the grant shall not entitle the candidate to be better than the one who had got grace marks. This provision is for the Commission. An idea occurred whether grace to be conferred by a body can be claimed by an individual. But when it is provided for in statutory rule or authority is conferred and it is laid down that it shall not affect others and when it is invariably exercised, a person concerned can ask that he be not discriminated against and be shown the same grace which is done to similarly placed or at least his case considered. In the case in hand, the appellant was not held entitled to one grace mark in a language paper on the ground that his aggregate was less than 50 per cent. Therefore, it has to be seen whether the ground is valid. Now, referring back to the provision, it will be recapitulated that the grant of grace marks is not conditional upon getting 50 per cent. Marks in the aggregate. That percentage is for another purpose of calling for interview. The limitation on grant of grace marks is that the grantee shall not be better of than other who had not marks on their own. Condition of one provision cannot be added to another provision when the latter has its own conditions. The appellant was asking for one grace mark in a language paper. Exact or accurate marking to a number may be possible in a paper like Mathematics or Physics. But there is always a possibility of one mark being more or less in a language paper. That may be the reason that the Commission is allowed to give grace marks up to five. Now, if the appellant is given one grace mark in the Urdu language paper, his aggregate will be 50 per cent. The contention of the learned Additional Advocate‑General that the grant of one grace mark in the paper cannot be counted in reckoning the aggregate is really not very gracious. What is the use of showing grace if it has not to have full effect? One cannot be gracious and then withhold part of the benefit of the grace. Moreover, if there is grant of grace marks but those marks are not to be added to the‑total and reflected therein, it would be bad arithmetic because the total of all the marks including grace marks would be more but shown less." The judgment in the above‑referred case was challenged by the Punjab Public Service Commission before the Supreme Court but the Commission's appeal was dismissed.

5. The old rule in which there was scope for grant of grace marks was substituted through notification dated 18‑6‑1986 which reads as under:‑‑ "No. SOR‑III‑1‑8/86 (B).‑‑‑In exercise of the powers conferred upon him by section 23 of the Punjab Civil Servants Act, 1974, the Governor of the Punjab is pleased to direct that in the West Pakistan Civil Service (Judicial Branch) Rules, 1962, in their application to the Province of the Punjab, the following further amendment shall be made namely:‑‑ In the Appendix‑‑‑ for the Note under Compulsory subjects the following shall be substituted:‑‑ "Note".‑‑‑No candidate shall be summoned for viva voce and psychological tests 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. No candidate shall be considered to have qualified in the examination unless he also obtains 30 per cent. marks in viva voce and psychological tests. Failure in or absence from viva voce and psychological test shall mean that the candidate has failed to qualify for appointment and his name will not be included in the merit list. " Thus, the provision regarding grant of grace marks was omitted and a definite rule laid down making it obligatory for a candidate to obtain 33 % marks in each individual written paper and 50% marks in the aggregate to qualify him for being called for viva voce and psychological tests. There is no scope of awarding even a single grace mark after the enforcement of the amended rule. Similarly, there is no possibility of ignoring fractional short fall. This may be possible in the banking practice while counting money so as to get a round figure but the same is not possible in respect of an examination for determining the merit of a candidate his eligibility for being called for an interview after the written examination. It is settled principle of law that when law provides a thing to be done in a certain manner it ought to be done in that manner or not at all. This principle has to be adhered to in order to achieve the coveted object of rule of law and equality before the law. In this connection, reference may be made to the following judgments:‑‑ (1) Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore, Division, Lahore and 2 others PLD 1971 SC 61. (2) Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Ltd. PLD 1965 (W.P.) Lah. 82. (3) Chairman, Evacuee Trust Property, West Pakistan, Lahore v., Muhammad Din and another PLD 1971 Lah. 217. (4) Muhammad Ashraf and another v. The State 1971 PCr.LJ 985. (5) Mian Abdul Majid and 7 others v. The Chief Administrator of Auqaf. West Pakistan, Lahore PLD 1972 Lah. 66. (6) Messrs Associated Cement Companies Ltd., Bombay through its duly constituted Attorney Mr. Tariq Ali, Advocate, Karachi v. Pakistan through the Commissioner of Income‑tax, Lahore and 7 others PLD 1972 Lah.204. (7) Syed Fayyaz Hussain Qadri, Advocate v. The Administrator, Lahore Municipal Corporation, Lahore and 4 others PLD 1,972 Lah. 316. (8) Khokhar Engineering Company and 2 others v. Habib Bank Limited 1986 MLD 2941. (9) Sardar Muhammad Arif Khan, Advocate v. Noor Alam and others 1987 CLC 1353. (10) Dr. Muhammad Iqbal and others v. Haji Muhammad Akram PLD 1991 Lah.

8. In the case of Atta Muhammad Qureshi, it was held that neglect of the plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing done in some other manner if the enactment is absolute and not merely directory. The test indicated in the judgment to ascertain whether a provision of law was absolute or merely directory, was the character of the language in which it was couched. The Court was pleased to hold, if it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If on the other hand, the language is affirmative, it may be considered as a directory provision. In the case of Chairman, Evacuee Trust Property, West Pakistan, Lahore, a Division Bench of this Court had held:‑‑ "No maxim of law is of more general and uniform application than expressio unius est exclusio alterius, or which is shortly put expressio unius alterius exclusia a maxim meaning express mention of one thing implies the exclusion of another. It is never more applicable than in the construction and interpretation of statutes (Broom Leg. Max). Whenever a statute limits a thing to be done in a particular form, it necessarily includes in itself a negative, viz., that the thing shall not be done otherwise. The expression of a condition excludes the doing of the act authorised, under other circumstances than those so defined. It is, indeed, a principle of logic and of common sense, and not merely a technical rule of construction. " The same principle was elucidated and applied in the cases of Muhammad Ashiaf and another, Mian Abdul Majid and 7 others Messrs Associated Cement Companies Ltd., Bombay, Syed Fayyaz Hussain Qadri, Advocate, Khokhar Engineering Company and 2 others and Sardar Muhammad Arif Khan, Advocate. In the case of Dr. Muhammad Iqbal and others, it was held that if the language of the statute was clear and unambiguous, a Court must apply the same, however, unreasonable and harsh the consequences.

6. In the present case, the provision of law is couched in negative language and is clearly absolute and mandatory. It is also a settled principle of interpretation of statutes that where the words employed in the statute are clear, the said words best declare the true intention of the Legislature. This view was expressed in the Full Bench judgment in the case of Master Chiragh Din v. Abdul Hakim and another PLD 1974 Lah. 370: The provision in hand is also clear and the Court has no option but 'to give effect to the same, despite sympathy for the petitioner who had unfortunately failed to get one more mark to qualify for being called for interview and psychological test.

7. For the foregoing discussion, I find no merit in this petition which is dismissed in limine. A. A./J‑31/L Petition dismissed