' SHAHID ANWAR BAJWA, J.---By this order we propose to decide C. P. No, D-1508 of 2009 and C. P.
No . D-1563 of 2009.
2. The petitioners in both the petitions appeared in examination in A response to an advertisement published under the direction of the Administration Committee of this Court for recruitment and selection for vacant posts of Additional District and Sessions Judges. Advertisement appeared for the first time in July, 2008 and was re-advertised in December, 2008. First test was held on 12-7- 2009. When the petitioners came for the test, it is stated in the petition, that at that time they were informed that only hundred top candidates would be allowed to sit in the second test. Thus there was no fixed percentage earmarking boundary between failure and success. The three petitioners in C.P.No,D-1508 of 2009 respectively scored 52 and 54 (two of the) marks and in one petition C.P.
No,D-1563 of 2009 scored 52 marks. Results were duly notified on the website on 15-7-2009 and a day earlier they were placed on the Notice Board also. Accordingly to the results, gentlemen who appeared at serial No,95 secured 57 marks as did the gentleman who appeared as serial No,113.
Thus, the top 113 persons were held eligible for sitting in the second test. After the second test was held results of the two tests were combined for all the 113 i.e, marks obtained in two tests were added and top 31 of them were called for interview which interviews were held on 12-4-2010 or thereabout.
3. Learned counsel for the petitioners made the following submissions:--
(1) He referred to page 35 of the petition to contend that when the tests were held in 2007 pass percentage of 50% was laid down. His contention was that this percentage was changed without any approval by any competent authority.
(2) The subject contend of the first test was primarily general knowledge with little bit of English thrown in. Second test was in respect of knowledge of law. Even those persons who failed in the second test i.e, those who secured less 50%, in fact even one who secured only 35% marks have been called for interview. Thus two different standards had been adopted for two tests and there is no plausible explanation.
(3) Policy of only taking up hundred persons should have been announced at the time of advertisement because the petitioners only prepared themselves to pass through the exam and therefore, they had been adversely affected.
(4) First test was conducted by the National Testing Services which D had no authority to conduct the test.
4 The following prayers were made in the petition (prayer in the second petition is substantially in the same terms):-- "(a) To declare that the petitioners have successfully passed the first paper and have obtained good passing marks as per rules and policy of the respondents.
(b) To allow all the petitioners to contest in the Second papers for Additional District and Sessions Judge.
(c) To direct the respondent No,2 to issue new list and declare the petitioners that they are eligible for second papers as per their own previous rule land policy.
(d) To direct the respondent No,1 to issue the calling letter to petitioner for contesting in second paper.
(e) To grant interim stay for the second paper going to be held on 25-7-2009, till the final disposal of this petition.
(f) Any other relief(s), which this honourable court may deem fit and proper."
5. Parawise comments were filed by the Registrar of Sindh High Court. It was stated in the parawise comments that it was announced by the NTS that top hundred candidates and the candidates with matching marks would be declared successful and eligible for second test. It was further stated in the comments that since the test had already been conducted on 25-1-2009, the petition had become infructuous.
6. We have considered the submissions made by the learned counsel as well as by the Registrar.
7. Contention of the learned counsel that NTS had no authority to conduct test is without any basis whatsoever. The authority to conduct tests vested in the High Court and if Administration Committee of the High Court for reasons that NTS being a Specialized Agency would be more attuned for conducting tests for general knowledge, verbalability and similar other characteristics subjects came to the conclusion that NTS be given the task of conducting first test no fault can be found with such a decision by Administration Committee. Moreover neither it has been stated in the petition nor was it argued during hearing that what prejudice, if any, has been caused to the petitioners by the mere fact that first test was conducted by NTS.
8. In the first test no pass percentage was fixed and it was announced on the morning of the test that top hundred candidates would be selected for second test. When a test is conducted selection for a particular posts it is sole and exclusive discretion of the authority ordering test to decide whether to lay down a benchmark, such as 50%, or to decide a particular figure, of course keeping in view the number of vacancies available, and then select and skim that number from the top or to adopt both as criteria and in such a situation it would be setting a floor rather than a benchmark. If the Administration Committee laid down a pass percentage in 2007 and laid down a number for skimming from the top in 2009 it could not be said to have been done in violation of any provision of law or without any authority.
9. However there are two aspects which have caused some concern. Firstly, it was argued by the petitioners that since the first test was for lingual ability and general knowledge and second test was for knowledge in the field of law and since it was not pre-announced that a certain number will be skimmed from the top, they prepared to scrape through rather than to achieve any particular level in the first test. Their expectations could have been that they were concentrating more on the second test because the previous practice had been that anyone who secured 50% was allowed to sit in the second test. Therefore a certain prejudice or at least a semblance of prejudice appears to have been caused to the petitioners and other similarly placed persons. The second aspect which has caused concern is that in the second test (on the subject of law) neither was a pass percentage fixed nor was a top skimming level fixed. Therefore, at least theoretically speaking, even a person who fails in the second test, since the procedure adopted was that after the second test scores of two tests were added to each other for preparing merit list, would be entitled to be selected or would, at least conceivably, have a chance of being selected. Thus, there appears to be discordance between the criteria followed in the first test and the process and the criteria followed in the second test and the learned Registrar has not been able to state anything or produce any document to substantiate as to for what reasons no pass per cent age or skimming level was laid down for the second test.
10. This in our view has also prejudiced the position of the petitioners. Therefore, while allowing this petition, we direct that all those persons who secured more than 50% marks in the first test and who were not allowed to sit in the second test be given an opportunity of the second test. However, for the second test it would be for the Administration Committee to decide a pass percentage level and thereafter a combined merit list of the two tests may be prepared in which only those persons would be included who have secured more than 50% marks in the first test and also the percentage level decided by the Administration Committee in the second test. Thereafter the selection process may be followed in accordance with the law.