N.-W.F.P. PUBLIC SERVICE COMMISSION , and others vs MUHAMMAD ARIF and others

' JAVED IQBAL, J.---The above captioned appeals with leave of the court and petition for leave to appeal are directed against judgment dated 12-11-2009 and order 21-1-2010 whereby the Writ Petitions preferred on behalf of respondents have been accepted.

2. Leave to appeal was granted by means of order dated 3-3-2010 which is reproduced hereinbelow to appreciate the legal and factual aspects of the controversy:-- "These petitions have been filed for leave to appeal against the judgments dated 12-11-2009 passed by the Peshawar High Court, Peshawar.

2. Precisely stating facts of the case are that respondents appeared in Provincial Management Service Competitive Examination and as they could not qualify the examination, therefore, they filed petitions before the High Court with the plea that in respect of N.-W.F.P. Judicial Service Examination Rules, there is a provision under rule 6 for granting five grace marks then the candidate who are appearing for Provincial Management Service (PMS) Examination, they should also be allowed the same concession.

3. Learned counsel for the petitioner contended that the learned High Court in exercise of jurisdiction under Article 199 of the Constitution can interpret the rule but cannot add anything or can delete for the purpose of granting relief.

4. Contention raised by the learned counsel for the petitioner needs to be examined in view of the fact that when the rules are silent in respect of the services of the Provincial Management Service relating to the grant of grace marks whether the High Court was justified to extend the same benefit on consideration that as this concession is available in the judicial service, the same shall also be given to them. Appeals arising out of these petitions be prepared on the available record with liberty to the parties to file prepared on the available record with liberty to the parties to file additional documents if any. Appeals be fixed at Peshawar within a period of one Month subject to availability of the Bench".

3. Syed Arshad Hussain, learned Additional Advocate-General entered appearance on behalf of N.- W.F.P. Public Service Commission (appellant) and, contended vehemently that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is argued that no vested right of the respondents whatsoever was violated by not granting grace marks for which no provision was available in the relevant rules which escaped the notice of learned High Court causing serious prejudice against the appellant. It is urged vehemently that after having accepted the syllabus and submission of Examination Forms pursuant thereto the demand for grace marks being untenable and baseless could not have been made. The learned Additional Advocate General also invited our attention to the syllabus for the prescribed examination wherein no such provision was available enabling the respondents to get grace marks.

4. The main thrust of arguments of the learned Advocate Supreme Court on behalf of respondents is that five grace marks had been given to certain candidates by the Public Service Commission while holding examination for the appointment of Judicial Officers and how it can now be refused to the respondents which amounts to sheer discrimination and violation of the Constitutional provisions as enumerated in Article 25 of the Constitution of the Islamic Republic of Pakistan. The learned Advocate Supreme Court has supported the judgment impugned for the reasons as enumerated therein with thee further submission that verdict so given by the learned High Court being well based may be kept intact.

5. We have carefully examined the respective contentions as agitated on behalf of the parties and perused the judgment impugned with care and caution. The advertisement dated 16-2-2008 qua the posts of Provincial Management Service (PMS) (BPS-17) and syllabus prescribed for the said examination have been examined carefully with the eminent assistance of learned Advocate Supreme Court on behalf of respondents. A careful and an in-depth scrutiny of the advertisement and syllabus would reveal that no such provision for grant of grace marks was available. The learned Advocate Supreme Court on behalf of respondents was asked pointedly that which provision of the syllabus prescribed for the said examination was violated but no satisfactory answer could be given. It has been mentioned in a categorical manner in the prescribed syllabus for Competitive Examination of Provincial Management Service PMS that no candidate shall be summoned for viva voce test unless he has obtained at least 30% marks in each option paper, 40% marks in each compulsory paper and 50% marks in aggregate of the written portion of the examination. The syllabus does not provide the provision of granting grace marks to the candidate which was also made clear in general condition in the advertisement. The question that in the absence of any provision qua granting grace marks how it could have been demanded or claimed could not be answered. The contention of learned Advocate Supreme Court as mentioned hereinabove seems to be in-oblivion of the fact that criterion, qualification and terms/conditions for holding Competitive Examination for different categories cannot be one and the same having its own peculiar characteristics.

6. We have not been persuaded to agree with the learned Advocate Supreme Court on behalf of respondents that the provisions as enumerated in Article 25 of the Constitution of Islamic Republic of Pakistan have been violated which are reproduced hereinbelow for ready reference:-- "25 (1) Equality of citizens. All citizens are equal before law and are entitled to equal protection of law.

(2) There shall be no discrimination on the basis of sex alone.

(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children".

7. The provisions as enumerated in the above-mentioned Article have been examined time and again by this Court and the judicial consensus seems to be that "Article 25 of the Constitution enjoins that all citizens are equal before law and are entitled to equal protection of law, i,e,, all persons subjected to a law should be treated alike under all circumstances and conditions both in privileges conferred and in the liabilities imposed. The equality should not be in terms of mathematical calculation and exactness. It must be amongst the equals. The equality has to be between persons who are placed in the same set of circumstances. The dominant ideal common to both the expressions is C that of equal justice. The guarantee contained in this right is only that no person or class of persons shall be denied the same protection of law which is enjoyed by other persons or other classes in like circumstances. It must, however, be kept in view that though the persons similarly situated or in similar circumstances are to be treated in the same manner but the "equality clause particularly the provision about the equal protection of the law does not mean that all citizens shall be treated alike under all set of circumstances and conditions; both in respect of privileges conferred and liabilities imposed. Whatever else the expression 'equal protection of law' may mean it certainly does not mean equality of operation of legislation upon all citizens of the State." "Equality of citizens does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities. The conception of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility.

The Article guarantees a similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. It means that among equals the law should be equal and should be equally administered and that the like should be treated alike, and that there should be no denial of any special privilege by reason of birth, creed or the like and also equal subjection of all individuals and classes to the ordinary law of the land. Classification which is not arbitrary, capricious or in violation of the doctrine of equality cannot be questioned. It is the basic requirement of law that all persons shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed. In the present case P had executed an agreement wherein all the liabilities and privileges have been incorporated and it had to remain within the defined sphere laid down in the agreement and cannot claim those privileges conferred upon W or M as they had to be treated in accordance with their agreement executed subsequently with the authorities and admittedly the agreement of P was not similar to the agreement executed by and M, therefore, the similar treatment could not be expected or asked by P who had got its own package of privileges and liabilities enumerated and specified in the agreement. (Saeed ud Din v. Secretary to Govt. Of N.-W.F.P. 1990 CLC 8, Pak Petroleum Workers Union v. Ministry of Interior 1991 CLC 13, Sheoshankar v. M.P. State Govt. AIR,1951 Nag. 58, Gul Khan v.

Govt. Of Balochistan PLD 1989 Quetta 8, Muhammad Hussain v. Abdul Rashid PLD 1975 Lah. 1391, F.B.

Ali v. State PLD 1195 SC 506, Mubarik Ali Khan v. Govt. Of Punjab 1990 CLC 136, Zakaria v. Trustees of the Port of Karachi PLD 1968 Kar. 73, Mohd Mukhtar v. Special Tribunal PLD 1977 Lah. 524, Rifat Parveen v. Selection Committee Principal, Bolan Medical College PLD 1980 Quetta 10, Sheoshankar v. M.P. State Govt. AIR 1951 Nag. 58, Sheoshankar v. The State ILR 1951 Nag. 646, O.M. Parkash v. The State AIR 1955 All. 275, Balochistan Bar Association v. Govt. Of Balochistan PLD 1991 Quetta 7, Jibendra Kishore Achharyya Chaudhory and 58 others v. The Province of West Pakistan and Secretary Finance and Revenue Depatt. Govt. Of East Pakistan PLD 1957 SC 9 and Golam Sarwar Mollan v. Election Tribunal PLD 1965 Dacca 86, Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44.

8. In view of what has been discussed hereinabove it can be inferred safely that reasonable classification which is not arbitrary or violative of doctrine of equality cannot be questioned. We are not impressed by the contention made by the learned Advocate Supreme Court on behalf of respondents that it is a case of sheer discrimination because discrimination means "making a distinction or difference between things; a distinction; a difference; a distinguishing mark or characteristic; the power of observing differences accurately, or of making exact distinctions; discernment. But discrimination against a group or an individual implies making an adverse distinction with regard to some benefit, advantage or facility. Discrimination thus involves an element of unfavourbale bias and it is in that sense that the expression has to be understood in this context (Shirin Munir v. Government of Punjab (PLD 1990 SC 295), (Pakcom Limited v. Federation of Pakistan (PLD 2011 SC 44). The learned Advocate Supreme Court has failed to point out any unfavourable bias which is an essential ingredient of discrimination and it is not understandable that how it can be pressed in to service.

9. The learned High Court has totally ignored the syllabus prescribed for examination and advertisement made in this regard. We may mention here that no vested legal right whatsoever was available to the respondents for the invocation of the provisions as envisaged in Article 199 of the Constitution of Islamic Republic of Pakistan. It is well settled by now that "the right which is the foundation of an application under Article 199 is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give jurisdiction to the High Court in the matter. Unless whatever right, personal or otherwise, on which the application is based is established, no order can issue under Art. 199." (Muntizma Committee v. Director K.A. PLD 1992 Kar. 54, Mahmoona v. Ham Din PLD 1984 Lah.

223, A.F. Farms and Industries v. Development Commr AIR 1953 Assam 155, Mahboob Khan v. Deputy Commissioner AIR 1953 Assam 145, Dineshcharan v. State of MB AIR 1953 Madh-B 165).

10. In the light of what has been mentioned hereinabove we are of the considered view that respondents had no legal right whatsoever to demand for grace marks in the absence of any provisions or relevant rules or syllabus prescribed for examination of Provincial Management Service PMS and no interference could have been made by the learned High Court in circumstances as mentioned hereinabove. All the Civil Appeals bearing No,40-P of 2010 to 57-P of 2010 are allowed and Civil Petition No,132-P of 2010 is converted into appeal and also allowed.