Mian Junaid Sardar Vs Govt

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

W.P No. 10023-P of 2025.

Mian Junaid Sardar Ahmed & 14 others vs Government of Khyber Pakhtunkhwa & 5 others Date of Hearing: 14.04.2026 Date of Announcement ____________ For Petitioner(s): M/s. Shumail Ahmed Butt, Hamid Ali Shah and Syed Abdul Basit, Advocates.

For Respondent(s): Syed Mukthar Ali Shah, AAG, alongwith Mr. Hamid Saleem and Mehtab Gul, Law Officers, Khyber Pakhtunkhwa Public Service Commission, Peshawar.

Research Assistance: Mr. Riaz Aslam Daavi, SRO

PHCP.

JUDGMENT

IJAZ ANWAR, J. Through the instant writ petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have knocked at the door of this Court seeking the following reliefs:

“IT IS THEREFORE very humbly prayed that on acceptance of this Writ Petition, this

Honorable Court may very magnanimously hold, declare and direct:

A. Declare that the recruitment process conducted by Respondent No.2 pursuant to Advertisement No.05/2024, insofar as it employs viva voce/interview without disclosed, consistent, and objectively verifiable criteria, is arbitrary, non-transparent, and violative of Articles 4, 10-A, 19-A, and 25 of the Constitution; that in a competitive examination, viva voce is only a supplementary component and cannot be used as an independent eliminatory device; and that failure to prepare and publish a complete merit list of all qualified candidates based on aggregate marks renders the selection process ultra vires and void.

B. Direct Respondent No.2 to place before this Honourable Court the complete record of viva voce/interview for Advertisement No.05/2024, including panel notifications, marking rubrics, evaluation sheets, minutes, and aggregate marks; to prepare and notify a full merit list of all qualified candidates strictly on aggregate marks under the governing Regulations; and to provide the Petitioners with their detailed marks and evaluation, in compliance with statutory obligations and their right to information. C. The impugned recommendations under Advertisement No.05/2024, based on a viva voce conducted without lawful criteria or auditable record, be set aside; that, alternatively, the viva voce—if retained—be re-conducted under a structured, transparent, and uniform framework; and that no final appointments be made, or if already made, remain subject to the outcome of this petition.

D. Declare that in a recruitment conducted through a prescribed competitive examination, viva voce is merely supplementary and must operate within the statutory framework of aggregate merit and the merit list under Regulation 32, and cannot be used as an independent eliminatory stage without express lawful sanction.

E. Set aside the impugned recommendations issued by the Respondent Commission pursuant to Advertisement No.05/2024, to the extent that they exclude the Petitioners and other similarly placed candidates who have qualified the written competitive examination.

F. Direct the Respondent Commission to prepare, approve, and notify a comprehensive merit list based strictly on the aggregate marks of all forty- five (45) candidates who qualified the written competitive examination, in accordance with Regulation 32 of the KPPSC Regulation, 2017. G. Direct the Respondent Commission to issue Detailed Marks Sheets (DMCs) to all candidates, including the Petitioners, in accordance with Regulation 34 of the KPPSC Regulations, 2017.”

2.The petitioners assail the recruitment process for the posts of Civil Judge-cum-Judicial Magistrate/Ilaqa Qazi (BS-18) on the ground that, having qualified the written competitive examination, they were excluded at the viva voce/interview stage through an opaque, arbitrary and non-speaking process. They contend that viva voce was treated as an independent eliminatory device rather than a supplementary component of the competitive examination; that no complete merit list of all written-qualified candidates was prepared on aggregate marks; that the respondents failed to disclose individual interview marks, rubrics, evaluation sheets, reasons, or criteria; and that the imposition of a 30% minimum qualifying threshold in viva voce, without transparent statutory backing and without reasoned assessment, violated Articles 4, 9, 10-A, 19-A and 25 of the Constitution. The

petitioners further plead that candidates who had secured higher written marks were excluded while fewer candidates were recommended than available vacancies, thereby frustrating merit, transparency, equality and lawful public recruitment

3.The respondents deny that the process suffered from illegality, arbitrariness or mala fides, and maintain that the recruitment was conducted strictly in accordance with the applicable Service Rules, syllabus and KPPSC Regulations. They submit that mere qualification in the written examination confers no vested right to appointment, as suitability for judicial office includes personality, temperament, integrity, judgment, independence and overall suitability, which are properly assessed through viva voce/interview. The respondents assert that the 30% viva voce threshold was prescribed and notified in the syllabus, that interview proceedings are confidential and not ordinarily challengeable, and that the petitioners failed to secure the mandatory qualifying marks; hence they were lawfully declared unsuccessful. They further rely on the earlier judgment in W.P. No.4847-P/2016, dated

24.01.2019, wherein similar challenges to interview marks and viva voce assessment were dismissed, and contend that the present petition is misconceived, not maintainable, and liable to dismissal.

4.Arguments heard and record perused.

5.The following pivotal questions arise for determination before this Court:

1.Whether the viva voce/interview is a mandatory qualifying stage carrying an independent minimum threshold of 30% marks, or whether it is merely an ancillary component incapable of operating as a separate eliminatory criterion?

2.Whether the petitioners, after failing to obtain qualifying viva voce marks, possess any enforceable right to recommendation or appointment?

6.As to question No 1, it is an admitted position that the petitioners applied for the posts of Civil Judge- cum-Judicial Magistrate (BS-18) advertised by the Khyber Pakhtunkhwa Public Service Commission (“Commission”) pursuant to a requisition received from the Registrar, Peshawar High Court. The recruitment process for the said posts is governed by the Khyber Pakhtunkhwa Judicial Service Rules, 2001 (“JSR 2001”), which were framed under Section 26 of the Khyber Pakhtunkhwa Civil Servants Act, 1973, for

regulating appointments to the Judicial Service and prescribing the terms and conditions of service of persons appointed thereto. Rule 5(e) of the JSR 2001 specifically entrusts the Commission with the responsibility of conducting recruitment to the posts of Civil Judge-cum-Judicial Magistrate (BS-18). The said provision reads as follows:

5(e) Appointment by initial recruitment to a post of Civil Judge-cum-Judicial Magistrate/ Alaqa Qazi shall be made on the recommendations of the Commission based on the result of a competitive examination to be conducted by it in the subjects specified in the Appendix to these rules.

Furthermore, Rule 2(d) of the Rules defines the term “Commission” to mean the Khyber Pakhtunkhwa Public Service Commission. Thus, under the statutory framework governing the recruitment process, the commission is the authority mandated to conduct the competitive examination and recommend candidates for appointment to the posts of Civil Judge-cum- Judicial Magistrate (BS-18). The JSR 2001 further prescribe, in considerable detail, the syllabus, eligibility criteria, qualifying standards, examination procedure, and merit determination mechanism governing recruitment to the Judicial Service. The Appendix appended to the Rules forms an integral part of the statutory framework and comprehensively

regulates the conduct of the competitive examination for the post of Civil Judge-cum-Judicial Magistrate (BS-18). As per the appendix, a candidate is not eligible to be called for viva voce unless he or she secures at least 33% marks in each individual written paper and 50% marks in the aggregate. Likewise, no candidate can be declared successful unless he or she secures at least 30% marks in the viva voce examination. The aggregate qualifying marks prescribed under the Rules are 425 marks in the written examination and 30 marks in the viva voce. For clarity and ready reference, the Appendix to the JSR 2001 is reproduced below verbatim:

APPENDIX

SYLLABUS AND STANDARD FOR THE Khyber Pakhtunkhwa

JUDICIAL SERVICE COMPETITIVE EXAMINATION.

1.The Competitive Examination shall be in the subjects as listed below and each candidate shall take all the subjects.

2.A candidate shall answer the papers in English, unless otherwise directed.

3.The subjects and maximum marks fixed for each subject/paper shall be such as shown below in column 2 and 3 respectively;

SUBJECTS/PAPERS

Serial Subject Maximum Number Marks

1.English General and English Eassy. 100 2. Urdu/pushto and General 100 Urdu/Pushto Paper.

3.General Knowledge:

a. Current Affairs and Every 100 Day Science. 50 b. Pakistan Studies

4.Civil Law-I 100

5.Civil Law-II 100

6.Criminal Law 100

7.Islamic Jurisprudence 100

8.Qanun-e-Shahadat 1984 and 100 Pleading

9.Viva-voice 100

Note: All papers shall be of three hours duration.

4.Qualifying marks in the aggregate of written papers and viva voce shall "respectively be 425 and 30.

5. NO CANDIDATE SHALL BE SUMMONED FOR VIVA VOCE

TEST UNLESS HE/SHE HAS OBTAINED AT LEAST 33

PERCENT MARKS IN EACH INDIVIDUAL WRITTEN

PAPER AND 50 PERCENT MARKS IN THE AGGREGATE.

NO CANDIDATE SHALL BE CONSIDERED TO HAVE

QUALIFIED IN THE EXAMINATION UNLESS HE/SHE

ALSO OBTAINED AT LEAST 30 PERCENT MARKS IN

VIVA VOCE, FAILURE IN OR ABSENCE FROM, VIVA

VOCE SHALL MEAN THAT THE CANDIDATE HAS

FAILED TO QUALIFY FOR APPOINTMENT AND HIS/HER

NAME WILL NOT BE INCLUDED IN THE MERIT LIST.

6.Five grace marks may be given to really deserving candidates in one or two papers; provided that such grant of grace marks shall not entitle the grantee to have a better position on the merit list than those successful candidates who have not been granted any grace marks.

7.If a candidate's handwriting is not easily legible, deduction which may be considered suitable may be made on this account from the total marks secured by him/her.

8.Credit will be given for good English including orderly, effective and exact expression combined with the economy of words, in all subjects of the examination and not only in subjects which are specially devoted to English.

9.Names of candidates who qualify shall be arranged in order of merit according to the aggregate marks obtained in the examination.

10.In the event of a tie, the order of merit shall be determined in accordance with the highest marks secure in the viva voce. Should the marks in the viva voce of the candidates who tie be equal, then the candidate who is older in age shall be placed senior.

DETAILED SYLLABUS FOR THE Khyber Pakhtunkhwa

JUDICIAL SERVICE COMPETITIVE EXAMINATION

1.English General and English Essay. This paper is intended to test the candidate's command of the English language and may included precise writing usage of idioms, with an essay in English on one of the several specified subjects and is intended to test the candidates ability to compose.

2.Essay and General Paper in Urdu/Pushto. This paper is intended to test the candidates to write the language fluently and to translate from English into it. Candidate's will be expected to have a grasp of the language and to understand poetry and prose. Knowledge of literature as such will not form part of this paper.

3.General Knowledge including every day science and Pakistan Studies. This paper is intended to test the candidates knowledge of current world affairs and also of broad facts of historical political geographical and

economic importance. A section will be included to test the candidate's knowledge and understanding of matters of every day observation and experience in the scientific aspect. Eighty marks will be allowed for General Knowledge Current Affairs and 20 marks for every day Science Paper of Pakistan studies will be of Degree standard.

4.Details of subjects with respect to certain paper. The following papers shall comprise the subject noted against each:

a. Civil Law Paper I (i) Civil Procedure Code, 1908 (ii) West Pakistan Civil Court Ordinance,

(iii)Contract Act, 1872

(iv)Sales of Goods Act, 1930.

b. Civil Law Paper II (i) Muhammadan Law/Islamic Law;

(ii)Registration Act, 1908

(iii)Limitation Act, 1908

(iv)Specific Relief Act, 1877

c. Criminal Law (i) Pakistan Penal Code, 1860

(ii)Criminal Procedure Code, 1898.

(iii)Hudood Ordinances, 1979.

d. Islamic Jurisprudence (i) Pre-Islamic Arab Society Evolution of the Islamic Legal system and sources of Islamic Law;

(ii)Importance of Qiyas, Istehsan, Istidlal, Ijtehad and Taqlid;

(iii)Acts, Rights and Obligations;

(iv)Ownership and Possession;

(v)Contracts, Torts and Crimes;

(vi)Procedure and Evidence;

(vii)Constitutional and Administrative Laws and Relations between Muslims and Non-Muslims.

e. Qanun-e-Shahadat (i) Qanun-e-Shahadat 1984.

1984 and Pleading. (ii) Particulars of Plaints.

(iii)Particulars of written statements;

(iv)Drafting of Plaints and written statements.

Note: Except in case of Muhammadan Law/Islamic Law, Hudood Ordinance, Islamic Jurisprudence and Pleadings, bare copies of the relevant Acts will be provided to the candidates.

5.The object of the Examination is to test the practical ability of the candidates rather than the range of their theoretical knowledge. For this purpose the kind of questions that will be asked will be to give the facts of a typical case and ask the candidate to frame issues, to write a Judgment and to discuss the admissibility of evidence.

6.Viva Voce: The viva voce will be a test of the personal qualities of the candidates. This examination will be in matters of general interest and is intended to test the candidates alertness, intelligence and general outlook. The bearing and physique of the candidate will also be taken into Consideration.

7.A holistic reading of the Appendix forming

part of the JSR 2001 leaves no manner of doubt that the competitive examination for appointment as Civil

Judge-cum-Judicial Magistrate is conceived as a composite and multi-stage assessment process, consisting not only of written papers but also of viva voce, each carrying independent qualifying requirements. The Appendix expressly prescribes the subjects, marks allocation, qualifying criteria and method of determining merit, and categorically provides that no candidate shall be summoned for viva voce unless he or she secures at least 33% marks in each written paper and 50% marks in the aggregate, while no candidate shall be deemed to have qualified the examination unless he or she further secures at least 30% marks in viva voce. The Appendix further stipulates that failure in, or absence from, viva voce shall render the candidate disqualified for appointment and his/her name shall not be included in the merit list.

Equally significant is the declared object of the examination, which is stated to be the assessment of the practical ability and overall suitability of candidates rather than a mere evaluation of theoretical legal knowledge, while the viva voce is specifically designed to examine alertness, intelligence, general outlook, personality, bearing and other qualities essential for judicial office. A written examination and viva voce

serve different but complementary functions in the process of public recruitment. While the written examination provides an objective assessment of knowledge and intellectual competence, viva voce enables the assessment of personal qualities and attributes not amenable to written evaluation. Thus, the statutory framework treats the viva voce not as a ceremonial, ancillary, or optional exercise, but as an indispensable and substantive component of the competitive examination. It is, therefore, evident that a candidate who either does not participate in the viva voce or fails to secure the prescribed minimum qualifying threshold of 30% marks therein cannot be regarded as having qualified the examination.

Consequently, no such candidate can claim any vested or enforceable right to recommendation, inclusion in the merit list, or appointment merely on the basis of having passed the written portion of the examination, as successful completion of both the written and viva voce stages is a mandatory precondition under the governing statutory framework. Therefore, the contention that aggregate written marks alone confer a right to inclusion in the merit list, or that viva voce cannot operate as a qualifying stage, stands squarely

contradicted by the express language of the Appendix, which makes successful completion of both the written and viva voce components a condition precedent for qualification and consideration for appointment.

Significantly, neither the vires of the Rules nor the validity of the Appendix appended thereto has been challenged by the petitioners and the statutory scheme governing recruitment to the Judicial Service under the JSR 2001, having been framed in exercise of the powers conferred by Section 26 of the Khyber Pakhtunkhwa Civil Servants Act, 1973, enjoys full legal sanctity and binding force.

8.As regards the contention that viva voce is inherently subjective and susceptible to bias, favouritism, inconsistency, or other extraneous considerations, there can be little dispute that oral interviews have historically attracted such criticism.

However, such criticism, though not entirely unfounded, cannot justify the exclusion of viva voce from the selection process, particularly where the post in question requires qualities that cannot be adequately measured through written examinations alone. Judicial office is not merely an academic position requiring knowledge of law; rather, it is a public trust demanding

integrity, temperament, independence of mind, sound judgment, decisiveness, communication skills, composure, and the ability to perform judicial functions under pressure. These attributes are not readily amenable to objective evaluation through written papers and may legitimately be assessed through viva voce. Therefore, the mere presence of a subjective element in the interview process does not render it unconstitutional, arbitrary, or unlawful, especially when it forms an express and integral part of the governing statutory framework. What the law requires is not the elimination of discretion altogether, which is neither possible nor desirable, but the adoption of adequate safeguards to ensure fairness, transparency, and objectivity. Such safeguards may include the constitution of competent and experienced interview panels, independent assessment by each member, separate recording of individual marks, preservation of the assessment record, determination of the final result on the basis of collective evaluation, and disclosure of the interview marks secured by each candidate. These measures substantially reduce the possibility of arbitrariness and ensure that the assessment reflects the considered opinion of the panel as a whole. Therefore,

while viva voce may not be a wholly objective method of assessment, the solution lies in regulating and structuring the process rather than dispensing with it.

Once viva voce constitutes a mandatory component of the statutory recruitment process, a candidate who fails to secure the prescribed qualifying threshold therein cannot claim any vested right to recommendation or appointment merely on the basis of performance in the written examination.

9.Another contention advanced before the Court is that the interviewers, or the Interview Panel, did not properly evaluate the petitioners and failed to award marks proportionate to the marks obtained by them in the written examination. This contention is misconceived. It is a settled principle of jurisprudence, consistently recognized by the superior courts, that, ordinarily, the High Court, in the exercise of its constitutional jurisdiction, cannot assume the role of an appellate or supervisory authority over the examination and assessment process conducted by the Public Service Commission. The evaluation of candidates, including assessment in viva voce, falls within the exclusive domain of the Commission and its duly constituted Interview Panel, which are mandated under

the law to conduct interviews. Moreover, Regulation 31(f) of the Khyber Pakhtunkhwa Public Service Commission Regulations, 2017 provides that interview proceedings are confidential and cannot be challenged.

Unless mala fide, bias, patent illegality, or violation of the prescribed procedure is specifically established, the Court would not substitute its own opinion for that of the expert body entrusted with such function. At this juncture, it would be appropriate to examine the view expressed by the Honourable Supreme Court on the point in issue.

1.Asif Mahmood Chughtai, Advocate v. Govt of Punjab (2000 SCMR 966):

It was observed that high marks in the written examination do not confer a right to appointment where the candidate fails to secure the qualifying marks in interview.

2.Dr. Mir Alam Jan V. Dr. Muhammad Shahzad

(2008 SCMR 960):

It was held that, in the exercise of its constitutional jurisdiction, the High Court is not expected to assume the role of a Selection Authority in service matters by substituting its own opinion for that of the competent authority.

3.Muhammad Ashraf Sangri v. Federation of Pakistan (2014 SCMR 157):

“6. It is an admitted position that although the petitioner had cleared the written examination but he had failed in the interview/viva voce which was a pre-condition before he could be appointed as a member of the Central Superior Service of Pakistan. It would be seen that the written test is designed essentially to gauge a candidate's familiarity with the subjects which he has chosen to offer for this purpose plus his power of expression etc. Hence the written test does not gauge the personality of the candidate or his communication skills or his leadership or decision making abilities which are left to be examined at the time of interview. The Central Superior Service of Pakistan is not merely any type of service but should only admit such persons in its fold who have a well- rounded personality, a grasp over national and international affairs, balanced sense of judgment, maturity and stability, good communication skills and leadership as well as decision making abilities. This is for the simple reason that very important matters of the State and the country are entrusted to the members of the Central Superior Service and if persons of low intellectual quality or feeble personalities enter the same, the entire country suffers. When the petitioner sat for the SSC Examination he knew very well that not only did he have to pass the written test (which he did) but also the interview in which he failed. Essentially an interview is a subjective test and it is not possible for a Court of law to substitute its own opinion for that of the Interview Board in order to give the petitioner relief. What transpired at the interview and what persuaded one member of the Board to award him only 50 marks is something which a Court of law is certainly not equipped to probe and to that extent we cannot substitute our own opinion with that of the Interview Board. Obviously if any mala fides or bias or for that matter error of judgment were floating on the surface of the record we would have certainly intervened as Courts of law are more familiar with such improprieties rather than dilating into question of fitness of any candidate for a particular post which as observed above is subjective matter and can best be assessed by the functionaries who are entrusted with this responsibility, in the present case, the Public Service Commission.”

4.Arshad Ali Tabassum v. The Registrar Lahore High Court (2015 SCMR 112):

“According to the established principle of law this Court cannot substitute opinion of the Interview Committee on the bald allegation after losing the chance in the interview. Reference is made to the case of Asif Mahmood Chughtai, Advocate and 17 others v. Government of Punjab through Chief Secretary and others (2000 SCMR 966), Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others (2008 SCMR 960) and Muhammad Ashraf Sangri v. Federation of Pakistan and others (2014 SCMR 157).”

5.Suo motu proceedings regarding the eligibility of the Chairman and Members of the Sindh Public Service Commission (2017 SCMR 637):

“Therefore, balancing the lawful and genuine concerns of all concerned, safeguarding the legitimate concerns of the successful candidates, ensuring the credibility of the Commission and the integrity of the selection process we dispose of this matter by issuing the following directions:

(1)A person of integrity and competence who meets the stipulated qualification for appointment as Chairman of the Commission be appointed in terms of Article 242(1B) of the Constitution within two weeks from the date of the announcement of this judgment;

(2)It should be ensured that all Members of the Commission meet the prescribed qualifications;

(3)Persons of integrity and competence possessing the prescribed qualifications should be appointed to the vacant positions of Members of the Commission within four weeks of the announcement of this judgment;

(4)In view of the large scale illegalities/discrepancies committed in the written tests and interviews of CCE-2013 the same are set aside and cancelled. It is, however, clarified that the screening tests results are not cancelled/set aside;

(5)Fresh written tests for CCE-2013 for the posts as advertised be held as soon as possible after the appointment of the Chairman and Members of the Commission and after the verification of the credentials of the existing/remaining Members;

(6)Only the 2,813 candidates who had earlier taken the written tests of CCE-2013 for the 182 posts be permitted to take the fresh written tests even if in the meanwhile they have crossed the stipulated upper age, and without requiring payment of any additional fee/charge;

(7)When the papers of the written tests are sent for checking/marking the identity of the candidates must be kept anonymous/secret;

(8)The marks of the written tests should be publicly displayed on the Commission's website, on the notice board in its premises and in one Urdu, English and Sindhi newspaper; disclosure should be made of the marks obtained in each subject as well as the cumulative total against the candidates' roll numbers;

(9)All those who obtain the prescribed minimum pass marks in the written tests must be invited for the interview;

(10)The marks allocated for the interview must be allocated to the interviewers equally, however, to avoid a fraction the Chairman, or in his/her absence, the senior most Member shall have the higher mark rounded off to avoid a fraction;

(11)The Commission shall keep a separate record of the marks awarded by each interviewer and each interviewer should sign and date the same as well as the combined results;

(12)The results of the interview should be displayed in the same manner as mentioned above in point (8) with respect to written tests;

(13)The written tests, their checking/marking, interviews and display of results be completed as soon as is practicable since the matter pertains to CCE-2013;

(14)Candidates should be selected for all the advertised posts, unless they don't pass the written tests and the interview; and

(15)The candidates who are selected by the Commission should be offered appointment by the Government as per applicable law, and if any candidate declines the candidate who is next on the merit list be offered the same.

(16)That in the future the Government should provide a list of existing vacancies, which should include a list of posts that may become vacant in the foreseeable future and a list of new posts to the Commission every year and by a specified date. Upon receipt of such lists the Commission should start making arrangements for holding of competitive examinations; for the current year 2017 the said lists should be provided by the Government to the Commission within sixty days, upon receipt whereof the Commission should invite applications from interested individuals by placing advertisements, which should also clearly stipulate the legally mandated reserved seats, including those for women and persons having physical disabilities. It is clarified that the direction contained in this paragraph is not applicable to the examinations for CCE- 2013 in respect whereof separate directions hereinabove have been issued.

The review petition against the referred judgment, reproduced above, was dismissed and is reported as 2017 SCMR 1519. The said judgment has recently been reaffirmed and endorsed by the Honourable Supreme Court in 2025 SCMR 216.

6.Waheed Gul Khan v. Province of Sindh (2024

SCMR 1701):

9.An interview is inherently a subjective evaluation, and a Court of law does not have jurisdiction to substitute its opinion with that of the Interview Board to provide relief to anyone. The role of the Interview Board is to evaluate candidates based on a variety of subjective criteria, which may include interpersonal skills, presentation, and other intangible qualities that are difficult to measure objectively. These assessments are inherently qualitative and depend on the opinion of interviewers, who are appointed for their expertise and ability to make such evaluations. However, this does not mean that the decisions of the Interview Board are beyond scrutiny. If there were any indications of mala fides, bias, or significant errors in opinion that are apparent from the records, the Court would certainly be compelled to intervene.

10.This court in the case of Muhammad Ashraf Sangri v. Federation of Pakistan (2014 SCMR 157), has ruled that:- "Essentially an interview is a subjective test and it is not possible for a Court of law to substitute its own opinion for that of the Interview Board in order to give the petitioner

relief. What transpired at the interview and what persuaded one member of the Board to award him only 50 marks is something which a Court of law is certainly not equipped to probe and to that extent we cannot substitute our own opinion with that of the Interview Board. Obviously if any mala fides or bias or for that matter error of judgment were floating on the surface of the record we would have certainly intervened as Courts of law are more familiar with such improprieties rather than dilating into question of fitness of any candidate for a particular post which as observed above is subjective matter and can best be assessed by the functionaries who are entrusted with this responsibility..."

11.It is an admitted position that petitioners passed the written examination but did not succeed in the interview, which was a mandatory requirement for the test. Written test measures a candidate's knowledge and expression skills but does not evaluate important personality traits like communication skills, leadership qualities, and decision-making abilities. These traits are assessed during the interview. The interview process allows evaluators to see how candidates interact and respond in real-time, offering a complete picture of their suitability for the job. In the instant case, however, the petitioners failed to pass the interview examination as they did not meet the necessary standards in the interview. Thus, learned High Court was correct in its view that constitutional jurisdiction cannot be invoked for challenging the interview process.”

The synthesis of the above-referred judgments clarifies the consistent view of the Honourable Supreme Court that viva voce is a valid and substantive component of the selection process; failure therein renders a candidate unsuccessful notwithstanding his performance in the written examination, and courts will not ordinarily interfere with the assessment made by the Interview Board/Panel unless mala fide, bias, arbitrariness, or procedural illegality is established.

10.Before proceeding further, it would be appropriate to refer to the view already taken by this Court on the matter in hand.

1.Abdul Wahab v. KPK Public Service Commission (2014 PLC (CS) 926 Peshawar):

“Although petitioner was on top of the merit list of successful candidates in the written test but he could not obtain sufficient marks in the interview. Petitioner belongs to Zone-3 and as per merit list attached by petitioner with the writ petition the second and third positions were also fetched by the candidates from Zone-3 with 83 and 82 marks respectively, however, they too were not recommended and instead the candidate at S.No.128 of the merit list was recommended from Zone-3. Likewise, the first merit vacancy was given to the candidate from Zone-4 (Bannu), whose merit position was at S.No.57. Thus, there remains no force in the contention of petitioner that he being at S.No.1 of the merit list cannot be assumed a position at S.No.232 in the order of merit after interview because mere securing high marks in the written test would not create a vested right in favour of a candidate unless he secures required marks in the interview.”

2.Fayaz Ahmad v. KPK Public Service Commission (2019 PLC (C.S.) 969 Peshawar):

“This Court in its constitutional jurisdiction cannot assume the role of overseeing the process of examination conducted by the Public Service Commission; which is, indeed, the only and exclusive function of the Public Service Commission, having mandate under the constitution and law of the land to undertake the exercise of conducting examination/test for various positions in the Government, and make recommendations for appointment on the basis of such examination/test.”

3.Naveeda Naz v. Chairman KPK Public Service Commission (2020 PLC(C.S.) Note 34 Peshawar):

“5. As would be seen from the brief resume of cases of the petitioners, hereinabove, their common grievance is with regard to allocation of less than 30 % qualifying marks in the interview by the Commission, leading to their failure in the examination for 103 posts of Civil Judges-Cum-Judicial Magistrates/Illaqa Qazi (BPS-18), advertised by the Commission vide advertisement No.07/2015. Their contention in the writ petitions was that they had not only qualified the written test/examination but had also secured much higher marks even than the candidates who were recommended for appointment against the aforesaid posts to the Peshawar High Court. Their main grievance was that instead of each member of the panel/committee of the commission separately awarding marks in interview, they were declared unsuccessful only by the Chairman for not meeting the threshold of 30 % qualifying marks in the interview. The commission, on the other hand, claimed that the panel/committee 'unanimously' awarded the marks, meaning thereby that the petitioners failed in the mandatory interview in the opinion of each and every member of the

panel/committee, who 'unanimously' declared them failed in the mandatory interview, regardless of their qualifying the written test/examination, and securing even much more higher marks than the candidates who qualified the interview and were recommended on the basis of merit, which was result of qualifying marks in both the written test/examination and interview.

6.As such, nothing was pointed out in the writ petitions by the petitioners to discredit the process of interview, which was in accordance with the existing rules/regulations of the commission; and, apparently, not marred by any extraneous considerations. Even otherwise, this Court could not substitute opinion of the interview committee on the basis of allegations levelled against the interview process by the unsuccessful candidates, who lost their chance in the interview, in light of the consistent view of the august apex Court, reported as 2015 SCMR 112, 2014 SCMR 157, 2008 SCMR 960 and 2000 SCMR 966.”

4.Danish Usman v. Govt of KPK (2022 P L C (C.S.)

“5. No doubt, the petitioner has got requisite qualification and obtained higher marks in screening test but it is equally significant that it was not the only criteria for final selection rather it was only for short listing purpose. The committee has unanimously declared the petitioner as failed and no marks were given. Insofar as the contention of the learned counsel for the petitioner that even if no mark was given to the petitioner he could have been selected, this argument has no force as the interviewing committee has to adjudge the short listed candidates for the purpose of selection of specific job. As the interview is a subjective test and it is not possible for the Court of law to substitute its own opinion for that of an interview board, as it is in the domain of the members of the committee. The apex Court in case titled "Muhammad Ashraf Sangri v. Federation of Pakistan and others" (2014 SCMR 157) has observed:

"Essentially an interview is a subjective test and it is not possible for a Court of law to substitute its own opinion for that of the Interview Board in order to give the petitioner relief. What transpired at the interview and what persuaded one member of the Board to award him only 50 marks is something which a Court of law is certainly not equipped to probe and to that extent we cannot substitute our own opinion with that of the Interview Board. Obviously if any mala fides or bias or for that matter error of judgment were floating on the surface of the record we would have certainly intervened as Courts of law are more familiar with such improprieties rather than dilating into question of fitness of any candidate for a particular post which as observed above is subjective matter and can best be assessed by the functionaries who are entrusted with this responsibility"

6.It has been held in a case titled Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others (2008 SCMR 960) that:

"The High Court in constitutional jurisdiction is not expected to perform the functions of a Selection Committee so as to substituting its opinion with that of the competent authority. This Court in a judgment dated 24.01.2019 passed in Writ Petition No.4847/2016, while deriving guidance from cases as reported 2015 SCMR 112, 2014 SCMR 157, 2008 SCMR 960 and 2000 SCMR 966 has observed that:- "Even otherwise, this Court could not substitute opinion of the interview committee on the basis of allegations levelled against the interview process by the unsuccessful candidates, who lost their chance in the interview."

5.Muhammad Usman Ali v. Province of KPK (WP NO. 5187-P/2020 decided on 18.05.2023):1 “It is by now well settled that this Court, in its constitutional jurisdiction, cannot question marking so made in the interviews and cannot sit as appellate forum over the interviewers unless and until there is recorded minutes of the interviews, because, while sitting at Courts, we cannot infer that what were the questions asked and what were the answers given. Reference can be made to the cases titled "Muhammad Ashraf Sangri vs. Federation of Pakistan (2014 SCMR 157)", "Arshad Ali Tabassum vs. The Registrar, Lahore High Court, Lahore (2015 SCMR 112)" and "Asif Mahmood Chughtai vs. Government Of Punjab (2000 SCMR 966)". In view thereof, these writ petitions are dismissed.”

6.Ms. Tehmeena Bibi v. Govt of KPK (WP No 1385-P/2024 decided on 08.05.2024):

We have also gone through the original record and found that the interview panel have though assessed a candidate by giving him his respective marks in the interview, however, regarding the failed candidate no such score is mentioned. Similarly, it is also not clarified that what was the score given by each member of the interview panel. To make the interview process more transparent, it would be more appropriate that the score given to the candidate by each member of the interview panel should also form part of the record so that no room is left for tempering with the same. Even the failed candidate should know the score which he got in the interview. Now coming to the merit position of the petitioner's cases; it is crystal clear from the record that all of the petitioners have failed the interview, ffid interference by this Court in the interview marks is barred because the consistent view of the Superior Courts is that the High Court cannot assume the role of selection committee nor can sit as an appellate n / forum over the interview panel in the absence of record that what was the question asked and what was the response https://www.peshawarhighcourt.gov.pk/PHCCMS//judgments/WP‐ 5187‐P2020.pdf

of the candidate. Reliance is placed on 2014 t, SCMR 157 "Muhammad Ashraf Sangri vs. Federafion of Pakistan 2015 SCMR ll2 "Arshad Ali Tabassum vs. The Registrar, Lahore High Court, Lahore" ond 2000 SCMR 966 "Asif Mahmood Chughtai vs. Government of Puniab'.

7.Mst Nabila Hidayat Ullah v. Govt of KPK (WP No 3854-P/2023 decided on 26.09.2024):

“8. We have noted in many cases that the Khyber Pakhtunkhwa Public Service Commission is not mentioning the marks/score obtained by a candidate in the interview and merely, writes “Failed”. Such practice is required to be revisited. We have held so in many cases that atleast a candidate should know the marks obtained by him/her in the interview.

9.In the instant case, since petitioner has failed in the interview and it is the consistent view of the superior Courts that the High Court could not substitute opinion of the Interview Committee nor can sit as an appellate forum over the interviewers in the absence of any record that what were the questions asked and what were the answers given.”

8.Abdul Haseeb v. Govt of KPK (2026 PHC 2579/WP No 6182-P/2024 decided on

“It is by now a settled principle of law, consistently upheld by the august superior Courts, that the High Court, in exercise of its constitutional jurisdiction, cannot substitute its own opinion for that of the Interview Committee, nor can it assume the role of an appellate forum to re-evaluate the performance of candidates in an interview. Particularly, in the absence of any material on record demonstrating the nature of questions asked or the answers given by the candidates, the assessment made by the competent Interview Committee is not open to judicial interference.”

The consistent view emerging from the above-referred judgments is that viva voce, where prescribed under the governing rules, constitutes an independent and substantive component of the selection process, and a candidate who fails to secure the prescribed qualifying marks therein cannot claim selection merely on the basis of higher marks obtained in the written

examination. Equally settled is the principle that, in the exercise of constitutional jurisdiction, the High Court cannot sit as an appellate forum over the Interview Committee, reassess interview marks, or substitute its own opinion for that of the competent selection authority. Judicial interference is warranted only where mala fide, bias, patent illegality, extraneous considerations, or violation of the prescribed procedure is established. At the same time, the Commission is expected to maintain adequate transparency in the interview process by properly recording and preserving interview assessments, including the marks awarded to candidates. Thus, in the light of the JSR 2001, particularly the Appendix appended thereto, as well as the judgments of the Honourable Supreme Court and this Court referred to above, it is clear that, for recruitment to the Judicial Service under the said Rules, viva voce/interview, namely the oral test, is a mandatory qualifying stage carrying an independent minimum threshold of 30% marks. It is not an ancillary or merely supplementary component; rather, failure to secure the prescribed minimum marks therein operates as an eliminatory criterion. Question No.1 is answered accordingly.

11.As regards Question No. 2, once it has been held that viva voce/interview is a mandatory qualifying stage under the legal framework discussed above, the petitioners, having failed to secure the prescribed qualifying marks therein, cannot claim any vested or enforceable right to recommendation or appointment merely on the basis of their performance in the written examination. Question No. 2 is answered accordingly.

12.As regards the contention that neither the Khyber Pakhtunkhwa Public Service Commission (Functions) Rules, 1983 nor the Khyber Pakhtunkhwa Public Service Commission Regulations, 2017 prescribe a minimum qualifying threshold of 30% marks for viva voce, the same is misconceived. The recruitment to the Judicial Service is governed by the JSR 2001 and the Appendix/syllabus appended thereto, which specifically prescribe 30% marks in viva voce as the minimum qualifying threshold. Therefore, the absence of such threshold in the general Rules or Regulations of the Commission is immaterial, as the special statutory framework governing Judicial Service recruitment shall prevail. This contention, therefore, has no force.

13.As regards the contention, vehemently

advanced by the petitioners, that the marks awarded in the interview ought to have been separately allocated by each member of the Interview Panel and disclosed to the candidates, the same requires examination in the light of the governing statutory framework. The Khyber Pakhtunkhwa Public Service Commission was

established under Article 2422 of the Constitution of the Islamic Republic of Pakistan, 1973, and is entrusted with such functions as may be prescribed by law.

Pursuant thereto, the Khyber Pakhtunkhwa Public Service Commission Ordinance, 1978 (“Ordinance”) was enacted, which establishes the Commission as an independent statutory body responsible for conducting examinations and interviews for recruitment to public service. Sections 7, 10 and 10A of the Ordinance respectively define the functions of the Commission and empower the Government to frame rules and the

242.Public Service Commission. (1) Majlis‐e‐Shoora (Parliament) in relation to the affairs of the Federation, and the Provincial Assembly of a Province in relation to the affairs of the Province, may, by law, provide for the establishment and constitution of a Public Service Commission. (1A) The Chairman of the Public Service Commission constituted in relation to the affairs of the Federation shall be appointed by the President 3 [on the advice of the Prime Minister. (1B) The Chairman of the Public Service Commission constituted in relation to affairs of a Province shall be appointed by the Governor on advice of the Chief Minister.

(2)A Public Service Commission shall perform such functions as may be prescribed by law.

Commission to make regulations for carrying out the purposes of the Ordinance. Consequently, the Khyber Pakhtunkhwa Public Service Commission (Functions) Rules, 1983 and the Khyber Pakhtunkhwa Public Service Commission Regulations, 2017 have been framed to regulate the recruitment process. In the context of the present controversy, Regulation 32 assumes significance.

“32. MERIT LIST. (a) When all the eligible candidates called for interview for particular post have been interviewed, the Director Recruitment, Director Examination or any other authorized officer, as the case may be, shall prepare the merit list as per the marks recorded on the evaluation sheet and submit the case for the Commission’s approval. (b) Merit list shall be prepared keeping in view the aggregate marks secured by all the qualified candidates. (c) When two or more than two candidates have secured equal marks in aggregate the candidate who has secured higher marks in the interview shall be marked senior. In case the marks in aggregate and also the marks in the interview are the same, the candidate who is older in age shall be placed senior to the one who is younger. In case all the above-mentioned factors are the same, marks obtained in the final examination of the prescribed qualification for the post shall be the deciding factor. (d) In the case of Competitive Examination the merit list shall be prepared in accordance with the laid down provisions of the syllabus of the respective service.”

A bare reading of Regulation 32 clarifies that, in the case of a Competitive Examination, the merit list is to be prepared in accordance with the provisions of the syllabus governing the respective service. More importantly, clauses (a) and (b) of Regulation 32 contemplate two distinct stages. Under clause (a), once all eligible candidates called for interview have been

interviewed, a merit list is prepared on the basis of the marks recorded on the evaluation sheet and is submitted to the Commission for approval. Under clause (b), the merit list is thereafter prepared with reference to the aggregate marks secured by all qualified candidates.

The distinction between the two clauses indicates that the evaluation sheet and the initial merit list encompass all interviewed candidates, whether successful or unsuccessful, whereas the final merit list under clause

(b)relates only to those candidates who qualify the prescribed criteria. It, therefore, follows that even unsuccessful candidates form part of the evaluation process and have a legitimate interest in knowing the marks obtained by them in the interview as well as their overall position in the assessment process. This Court has already observed in Mst. Nabila Hidayat Ullah and Ms. Tehmeena Bibi3 that, in order to promote transparency and public confidence in the recruitment process, it would be appropriate that the marks awarded by each member of the Interview Panel be separately recorded and preserved as part of the official record, so that no room is left for manipulation or doubt. It has further been observed that even a candidate who fails Referred to above in paragraph No 10.

in the interview should be informed of the marks obtained by him or her. Such an approach is also in consonance with the spirit of Article 19A4 of the Constitution of Pakistan, which guarantees the right of access to information in matters of public importance, subject to law.

14.Accordingly, while the petitioners have failed to establish any legal infirmity in the interview process warranting interference in the present case, this Court reiterates its earlier observations that recruitment through viva voce would be rendered more transparent and credible if:

(i)interview panels comprise competent and experienced members;

(ii)each member independently assesses the candidate;

(iii)individual marks awarded by each member are separately recorded;

(iv)the final result is based upon the collective evaluation of the panel; and

(v)the existing practice of merely recording a candidate as “Failed” in the interview is replaced 19A. Right to information. Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.

by disclosure of the actual marks obtained by the candidate in viva voce out of the prescribed marks.

With these observations, the petition is dismissed.

Let a copy of this judgment be transmitted to the Chairman, Khyber Pakhtunkhwa Public Service Commission, for consideration of the observations made herein and for examining the desirability of making appropriate amendments to the relevant regulations.

Announced Dt:__________

Senior Puisne Judge

Judge

Amjad Ali, DB Mr. Justice Ijaz Anwar, and Mr. Justice Inam Ullah Khan, Hon’ble Judges