Sanaullah etc Vs Govt. of KP

a JUDGMEN'I' SI{EET

IN THE PESIIAWAIT I{IGH COUITT,

ABBOTTAI}AD BENCH.

(ludicial Depurtment) W.P. No. 600- Al202l

Sanaullah & others (Pctitioners)

vs

Government of Khyber I'akhtunkhwa & others. ....(ltespondcnts)

Present: Sardar Muhammad Irshad. Advooate lbr thc petitioners.

Mr. Sajid-ur-llehrnan Khan, AAG lbr the respondents.

Date of hcaring: 13.06.2023

.IUD(;MENT

WIQAR AHMAD, J.- 'l'his ordcr is clirected to dispose of the instant petition as well as connected constitutional petitions bearing No. 605-A1202I 874-A1202t, t058-A12021, 1052-A12022, 17 t- A12023 and 247-A12023, as ali these petitions are in respect of same subje<;t matter and involve similar question of law.

2.Petitioncrs in all these connccted petitions were candidates 1or appointment against vacant posts of Jail Warclcrs, advertised by the

respondents. Petitioners are mainly aggrieved of process adopted for making appointments of Jail Warders in different jails ol province. In order to clarif,z grievance of particr.rlar petitioners in their separate petitions, the facts of constitutional petitions are given separatcly as under;

WP No.600-A/2021

In thc instant petition, pctitioners oonlended that they along with othcrs appliod fbr their appointment as Jail Wardcrs. As per advcrtisemcnt, candidates sccuring less than 45o/o parccnt rnarks in written test would not bc cligiblc lbr appointment Petitioners contendcd that thcy secure d qualilying marks in the writtcn tcst. rvhcrcas rcspondcnts No. 4 to 10, having obtaincd lcss marks then pctitioners, had been appointcd whereas pctitioncrs wero dcprived Iiom their appointment. Pctitionors wero aggricved ol'non- inclusion of marks sccurcd by thcrn in thc test conducted by Irlitc 'l'esting Servicc in thc final rnerit list.

LltP No. 605-A/2021

Pctitioncrs in thc instant pctition have also been aggrievcd o[' nou-incltrsion o1' marks tlbtaincd by thcm in thc initial tcst takcn b,v lrlitc'l'esting System

a

couplcd with the critcria dcviscd lor cornpiling mcrit list. Additionally, pctitioncrs at Scrial No.3,7.8 & l0 have also becn aggricved ol- thc act of rcspondents, whcreby they have becn troatcd lailcd aftcr giving thcm zero marks in intcrview.

WP No. I 74-A/2021

Petitioncr hercin, after applying for his appointed as Jail Warder, clualilicd writtcn test as well as interview and was ultimately placed at serial No. 2 of the waiting list. As per contentions of the petitioner, rcspondcnts No. 1 to 3 have appointed respondents No. 4 to 7, appearing al Serial No. 6,7 8L 14 o1'thc merit list, whereas deprived him frorn right ol'appointment despite the fact that he was appcaring at Scrial No. 2 of the waiting list.

WP IYo. 1058-A/2021

Petitioncr in tlte instant casc contends that despite qualifying the requisite tests as well as interview, hc has not becn appointed against vacant post of Jail Warder. I Ic lirrthcr contendcd that at stage of interview, he was malafidely given zero

marks in order to deprive him from his appointment.

WP No. 1052-A/2022

Petitioners in the instant constitutional petition have claimed that marks obtained by thern in the screening test should have been given weightage towards the final aggregate and non- inclusion of such marks in thc linal aggregate by imposing condition No. l3 of the advertisement had prejudiced them. 'they have also assailed condition No. 13 of thc advertisement which provides;

L L tr L G) ->,v i/ .,:t.s/ *t/ L -t; -Q,L' " -Lo rg{,F st, 1t 7t I "f Li,t +r lt Lo xJv-, WP IYo. 171-A/2023 & 247-A/2023

In both these pctitions, petitioners have challenged vires of critcria lbr appointrnent in Grade-5 through initial recruitment, whereby for assigning marks ol'prescribcd clualification lbr a particular post, allegedly a vcry illogical method had been adopted by giving an edge to the

incumbents securing lirst division over candidates securing second and third division

4.Arguments of lcarned counsel for the parties, except Mr. Abdul Saboor Khan, Advocate (learned counsel for pctitioner in WP No. 1052- A12022) heard and availablc rccord gonc through Although Mr. Abdul Saboor Khan, Advocate was not available but his casc bcing similar in nature and clubbed with other rvrit pcrtitions was also taken up for decision on tncrits

5.Perusal o1' rccord revealed that grievances of petitioncrs in the sc connected petitions have mostly becn comrnon. In writ petition No. 605- A12022, bcsiclcs highlighting the common grievances against rccruitment process, certain additional issucs have also been raised regarding petitioners at Scrial No. 3, 7 , 8 and l0 of said writ petition, but sauc shall bc addresscd at latter part of this judgment

6.The comrlon ground of attack, AS highlighted by learncd counsel lbr thc petitioners at bar, may be summarir-ed in thc lollowing manner;

A. That despite toking oJ'o test through Elite Testing System (ETS) from olt petitionets, morks thereof'huve not been counted olong with the aggregute murks oJ'quuli/ication, experience and interview and thereJbre, oll respective petitioners have not been deult in uccordance witlt law' B. That the criterio wherein 70 ttut oJ'100 murks hove been assignetl for the prescrihed quali/icatittn i.e. Motriculotion (SSC) in this cuse ond only 12 matks fot higher educution out oJ 100, some wos illogical, irrationol and un reas o n a h I e.

(.art Resolution of Point

7 So far as thc first point summarized above is concerned, it is important to be notcd that the concerncd departmcnt i.c. Prison Dcpartment, Government of Khybcr Pakhtunkhwa, had

constituted a Departmcntal Sclcction Cornmittee for the subject recruitment which had taken the following decisions;

"A pre-DSC meeling was held in the ffice of Superinlendenl l-leadquarler Prison Haripur on 22/03/202I under the chairmanship ,/ Superinlendenl

headquarter Prison Ilctripur having member ship oJ'Jo I \ow irtg cs/Jicers ; -

i)Mr. Ruziq Muhantmucl, SO (P&R) I{ome & l'ribul A/fairs DePartment, Khyber P0khtunkhtt'a Peshawari Member.

ii)Mr ltlajitl Ghu./ran Jucloon, D/D/Repre,venlttlive o/ I() Prisons, Khyber l'akhtrrnkhv'a, Peshawari Member.

Following unanimous clecisions were taken during course ,n ['re-DSC meeling.

D 05 condidates againsl 0l (each) post will be c'alLed ,fbr inlerview and merit vvill slctnd uP lo 41 marks wrilten test. All

candidales having 41 marks in written lest vvill be called for inlerview.

II)Same crileriu as decided in Para (l) will be odoprecl /br the /bmale and minor ily cand idales.

III)Per day 50 canclidates will be called fitr intcrview.

IV)Inlerview proce.\s tt,ili commence w. e.J' Monc{ay 0 5 -04-2 02 I .

V)Superinlendent Ilead Quarter Central Prison Ilaripur will constitute a sc'ruliny commillee for scruliny oj the documents o/' the candidales.

VI)Candiclates .fbr interview will be in/brmed through postal call letler, lexl messoges ancl telephone call.

WD Marks of' cancliclctles obtainecl in written tesl us conducted bY ETS will onlv he considered

/b, eligibiLitv itt

interv iew/s horl I is ting PurPose and lhese marks will nol be lhe parl of aggregate total. OnlY prescribed quali/ication 6SC/Metric'), I ligher Qualification, lixPerience (nol pertinenl in case of Warder male/female) ancl inlerview, will he lhe comPonenls ,n Aggregale in ac:cordance willt the procedu'e/policY as notdied hy Govt ,/ KPK Es tab I i s h tne n I l)e par t me nt.

Wil) In compliunce of telephonic direclions o,l' Deputy SecretarY Home & Tls Deparlmenl Kl'> Nuntber ql cundidales be interviewed is increased fornt 30 candiclales lo 50 candidates per day.

IX)Further unanimously flsg\il.d the No. o/' canclidcrtes per daY be increased /i'ont 50 lo B0 candidales. l(hole Proceeding d Interview is crtncltLclecl as uncler;- Sl. l'r;. Description No.

01 Pas,s Conditlalc,s 639 02 Fail Candidntes 118

03 Unlir (Ileight. (' hcsr t JJ Concerned testing (tg,enc)' may be accessed into the ntuller for such a draslic negligence.

01 3'd Division lr S'SC' 01

04 Absent 77

7'otal 12 l8

8 Then according to the rnerit order,22l candidates had been considered fior appointment' For reference sake, the I'rrst and second row of merit list along with namc ol-contestants; is also reproduced hereunder;

'lirtal S. No. S# Roll No Name lralhcl Name Matric Higher I ntcrvieu' i\{uhamnrad l ariq 70 t2 6.6'7 88.67 I 49 107923 Noman Tariq

Muhammad ldrees r\li I(harr '10 t2 6.67 88,67 2 146 I 205 s0

I

9 On same pattcrn, all the marking had been assigned to all thc candidates rvherein 221 candidates have been recomrtendcd lbr appointment while another 59 candidates had also bcen placccl on waiting 1i st.

10.It was case o1'thc potitioners bcfore us that the marks of tcst takcn liom thcm through lllite Testing System should have bcen includecl in the aggregate and exclusion thcrcof had prejudiced their rights. 'l'he rcrspondents, tln the other hand, were having stance that in thc rclevant criteria for selection provided in llstablishtncnt Code Khyber Pakhtunkhwa (ltcvisccl Iiclition) 201 I (hcrcinaller

referred to as "Estacode") lbr appointment on post in grade-S and above, thc marks for test had not been provided to be countcd and the said test had only been taken for thc pLlrposc of shortlisting. In this respect, paft of rclcvant criteria is also reproduced for readY refcrcnce;

(il)Crileria cd SeLec'tion for initial recruilmenl:-

(i)Iror post in Grudes I to 4- No special criteria has been luid down and the commitlee concerne{l shull adopl ils own methocl and proceclure .fbr se lection.

(ii)I'-or posts in Grude-S und above in all deportments.- In crddition lo lhe lolal marks allocated /br tt vvritlen compelilive examinalion, tf aryt lrcld, the lolal marks will be 100 as per dislribtrtion given below:-

(a)Presuibed Eruli.ficcrtion ...70 (b) I ligher quali/iccrrion ... I2

(c)Iixperience ... 10

(d)lnterview ...08 "

11.faking the words "ln crddition to lhe total marks allocatec{ ./br vttrillen competilive examination, t/' ony heLcl" lcarned counsel for petitioners have also becn arguing that thc tnarks for competitive examination have been countable

-lt-

but exclusion thereof havc been made, which had prejudiced their rights. Wc have considered this aspect of the case but wc are unable to agrce with learned counscl 1or thc pctitioncrs lbr thc reason that competitivc cxarninaticln means an examination, which is rccluired under the law lor appointment on a particular post. Qualilying this test, conducted through I'rlite 'l'esting Systcm, was 'l'hcrefore, not requirement of law uncler Jail I{ules.

non-counting of respcctivc scores obtained by the candidate in the test, wcrc not lbund by US sufficient for rcvcrsing entire proccss of recruitment, alrcac'ly corttpletec'l in thc whole province as a result of which large numbcr of candidates have already bccn appointed' Wc have heard learned counscl lbr pctitit)ners but no case of violation of rnerit or discrimir-ration could bc made out, so far as the appointcd candidates were concemed. The critcria adopted by the Departmental Selection Committee has properly been followed and according to the given criteria, marks have been assignccl to all the candidates on

the basis of their qualification, higher qualilication, experience and interview.

12.So far as knoctking out of candidates due to obtaining zero marks in interview' is concerned, said issue shall be addressed at latter part of this judgment, as rncntioned earlier' Iixccpt those cases, we could not lind any illcgality, arbitrariness or favouritism in assigning of marks to the selected candidates.

Resolution of point B:

13.The criteria has been framcd much

earlier and as per a Ibotnote available there, it has lastly been revised on 26.05.2000. It appears that it has not been considercd and revised thereafter by the government. In writ pctitions No. 171'A12023 and 247-N2023, the pctitioncrs havc also challenged vires of the criteria to be illogical and irrational. I-earned counsel representing petitioners in said petitions contendcd that out ol' total 100 marks, 7O marks havc bcen assigned to the prescribed qualification alonc which in this case had been matric (SSC), wl"rilc only 12 marks have been assigned to highcr qualification' She

contended that in the subsequent parl,,, first divisioner has been shown to be entitled to 70 marks while second divisioncr cntitled to 53 marks and third divisioner entitlcd to 42 marks. She contended that if a candidatc happens to have acquired second division in matric, a decadc or two before, he would not be ablc to compete with another candidate who had obtained first division, even if the former has improvcd and has obtained his education up to doctorate i.c. PhD. She termed the criteria to be really illogical and irrational. In response to her arguments, learned AAG relied upon judgment of honoruable Supreme Court of Pakistan, given in the casc o1' "Ficlcr Hussuin Vs.

The Secrelary, Kashmir AJfuirs and lYorthern Affiirs Division, Islsmubud and unother" reported as PLD 19 95 Sunreme Cou rt 707 and contended that framing of criteria for appointment on certain post or requirement of certain clualilication, was a prerogative of the provincial government which could not be que stioned ln constitutional jurisdiction of this Court

14.Arguments of lcarned counsel lor petitioner was carrying weight, but we could not annul entire process of recruitmcnt on said ground for the reason that basically it is the job of the employing authority i.c. concerncd dcpartment or provincial government in this case, to devise criteria for determining merit of the competing candidates but at the samc tirne we cannot lose sight of the fact that over the ycars, there have been much developments in thc t-rclcl of academics and proficiency. The mode ancl mcthods, examination systems as well as scheue ol- studies of various disciplines have changed substantially over the past two decades. It appears that the oriteria had been fashioned on the old annual eclucational system and there also the quantification had not been propcrly made. In the casc in hancl, where the basic prescribed qualification is SSC, the criteria is such that only and only obtaining I'rrst division would give edge to a candidatc ovcr another candidate even if later happens to be a PhD degree holder in the relevant field. Iior civil scrviccs or public services, persons arc hirccl on purblic money' lt is

constitutional and legal responsibility of the government, particularly the relevant department (which is custodian of the relevant rules) that rules and instructions are so formulated that best human resource is procured for public services. There can't be two opinions in this regard. We, therefore, feel inclined to refer the matter to concerned department of government i.e. worthy Secretary listablishment, Government of Khyber Pakhtunkhwa as well as worthy Chief Secretary, (iovernment of Khyber Pakhtunkhwa for re-consic'lcration of the criteria and re-framing same in acoordance with the prevalent standards. In addition, they may also get feedback from leading cducationists, prolessionals and the relevant departments as well as attached departments. In the new situation, it should also be clarified whether tests conducted and scores obtained therein should be given weightagc, if so, then the quantum of such weightage should also be specified.

15.Coming to pctitioners appearing al Serial No.3,7,8 and 10 of writ petition No' 605- Al2O2l, as well as pctitioner in W? No. 1058*

Al2O21, it is important to bc noted that in their cases, zero marks havc been given to them in interview and they have been declared failed' I.earned AAG was asked, whcther any spccific passing marks in intervicw were required in any law, rules or instructions of the government, but he could not point out any law, rules or instructions of the government in this behalf. Leamed AAG referred to footnote ol' the merit list wherein following three conditions havc bcen mcntioned;

"XII) Number o/'candiclctles were awarded incorrecl division ctf academics, names and DOB by testing agencies i.e. ETS, D.SC tried lo remove lhese mistakes/incoruecl awarding of division o/'crcademics, names and DOII.

ilil) Criteria /b, the candidates on waiting is set as "age vise seniorily".

XV)Candidate who scored 03 and abrtus marks will he idered as "Pass" (llmphusis Supptiul)

'l'he conditior-r that a candidate must obtain 03 marks in interview, otherwise he would be considered failed, have becn put in placc by the concerned Depar-tmcntal Selcction Committec.'l'he criteria on the other hancl, (a part of which has already been reproduccd in our discussion above) no doubt assigned 08 marks out of 100 for

interview, but the instructions nowhere provided or required obtaining of minimum or passing marks in the interview. By putting the condition of passing the interview by obtaining 03 out of 08 marks, the Departmental Selection Comrnittee has tricd to acquire a power ol' veto lor knocking out any candidate from the recruitment process, be him on top of the merit list otherwise. This absolute discretion l-ras nevcr becn vested in the Departmental Selectior-r Committce or the appointing authority by thc relcvant criteria already provided in Estacode

t7 We found said decision of the Departmental Selection Comn-rittee to be arl'tttrary, whimsical and irrational. Such absolute discretion cannot be left with mernbcrs o1'the Departmental Selection Committee whcrc thcy can disregard the other qualification, highcr qualification and experience marks by giving zero marks to 'l'herelbrc, we somebody and considering hirr fail.

by allowing writ petitions No. 605-4 12021 & 1058- Al2O21, direct the respondcnts to recalculate marks of petitioner in WP No. 1058-Al202l as well as

that of petitioners at Serial No. 3, 7,8 and 10 in WP No. 605-4 12021 by consiclering their zero marks in interview and if thcy arc lbund having more marks then last appointed candidate in aggregate, they shall accordingly be appointcd, but without disturbing already appointcd candidatcs. As per report submitted by the rcspondents in response to order dated 08.02.2023 in WP No. 874-z\12021,12 seats of minorities had gonc vacant. 'fhese five candidates or any numbcr o1' such candidatcs, if found entitled fior appointntcnt, shall be adjusted against vacant seats ol' rninorities and cluota reserved for minorities shall bc car:ried lbrward for future appointment on minorities quota in said department.

18.In writ pctitior-r No. 87 4-A/2021, petitioner had contendcd that as per waiting list annexed at page 25 of writ petition, petitioner had been placed at serial No. 2 and persons appearing at serial No. 6, 7 & 14 had bccu appointecl from waiting list, but petitioner had wrongly been deprived of his appointmcnt. On the last date of

hearing, this Courl has also passed following order;-

"Learned counsel /br petitirtner raised q new ground at bar, that total 250 vacancies had been available and advertised but departntent has only made appointmenl against 221 seqls' Wen learned IAG was asked said aspect ,rf the clse, he sought adjournment to get brie/ing /rom concerned department and explain the situation on the nexl clate. In the meanwhile, Superinlendent Central Prison HariPar shall also /ile explanation to the above noted query in writing within seven (07) days This petition be also cltrbbed logether with the case of Jail LVarders."

19.In responsc thereto, they have filed report in said writ pctition, cxplaining the position that out of 250 candidatcs,22l had been appointed on merits while 29 had, bcen appointed frotn those candidates who have lormcrly been belonging to armed forces, in accordance with rules' In para 4 of the comments, they have also explaincd that waiting list had been redralicd as per age, because marks of test and interview of the first eight

candidates on waiting list have been same. In the waiting list, annexed with the comments, thcy have also mentioned date of birth o1'all the candidates, wherein petitioner appcars at Serial No. 09 while they have appointcd candiclatcs at Serial No. 1,2 and 3. They being older in agc liorn pctitioner, have rightly been so appointcd. Learned counsel for the petitioner was heard, but he could not point out any illegality in the impr"rgncd recruitment process, warranting interlbrcncc of this Court in constitutional j urisdiction.

20.l,earned counscl lbr pctitir)ners in Writ Petitions No. 600-A1202l, 874-A12021, 1052- Al2O22, 17l-A12023 and 247-L12023 were heard at length, but they could not convince this court in reversing process o1- rccruritlrent, cxccpt cases of petitioners No. 3,7, tl and 10 in WP No' 605- Al2O21 and that of pctitioncr in WP No' 1058- Al202l. Rxcept cascs ol' tl-rc abovcmcntioncd petitioners, whose writ pctitions were partially allowed, rest of the writ pctitions were disposcd ol' with the observations madc above . Ol'licc is directed to send copy of'this judgmcnt to Secretary

Establishment as well as Chief Secretary, Government of Khyber Pakhtunkhwa for nccessary actions at their end.

Ileord emcl Announced on Dt: 13.06.2023 Prepared und signed on

JUDGE

t> .tur)

Tufoil./*

flon'ble Justice ll'iqur lhrnud, Hon'ble Justice )vluhanrnud lict: Klttttt.