This appeal before the Supreme Court of Pakistan arose from a High Court judgment that directed the Government of Punjab to amend its Recruitment Policy 2004. The respondent, an unsuccessful candidate for the post of Patwari, had challenged the selection process on the grounds that excessive weightage (40%) was given to interview marks compared to academic qualifications (60%), leading to subjective and arbitrary results. While the High Court declined to set aside existing appointments, it ordered that interview marks in future selections should not exceed 25%. The Supreme Court, while acknowledging that excessive interview weightage can introduce subjectivity, set aside the High Court's directions. The Court held that framing recruitment policies and rules falls within the exclusive domain of the executive under the principle of trichotomy of powers. It ruled that courts cannot assume the role of policy makers or strike down delegated legislation on vague grounds of 'unreasonableness' or potential for abuse, as the presumption of bona fide exercise of power applies unless specific mala fide acts are proven.
' TASSADUQ. HUSSAIN JILLANI, J . --Respondent No,1 Ijaz Hussain along with others competed for the posts of Patwaris. Having remained unsuccessful, he challenged the selection of successful candidates, inter alia, on the ground that despite his higher qualifications, he was not selected on account of undue comparative weightage in interview and the marks awarded to them. The learned High Court without granting any relief to the respondent-writ petitioner disposed of the petition in terms as follows:- "Now I have to see that at this stage what relief could be granted to the petitioner in the writ filed on 12-9-2006 when the said policy of 2004 had already been implemented in the impugned selection and a number of persons have already been appointed on the strength of that policy, after their appointments a lawful right had already been accrued in their favor because whatever the situation is, their appointment could not be declared illegal at this stage because in the process of their appointment those appointed persons were not at fault as such they could not be non-suited at this stage. However on the touchstone of reasonableness, it is directed that in the forthcoming selection the marks of interview should not exceed 25% to the total marks of selection and the Government of Punjab, shall take steps to amend the policy dated 17-9-2004 accordingly.
With these directions the writ petition is disposed of."
2 Learned Additional Advocate-General submits that the learned High Court could not have issued the directions to amend the recruitment policy as the said power falls within policy making domain of the executive authority; that the Government of Punjab had issued recruitment policy in the year 2004 which is still in vogue with certain modifications and it prescribed qualification for various posts as also the procedure for selection; that in the said policy an attempt was made to strike a balance between the academic qualification/background of a candidate and his performance during interview to which no exception can be taken. He adds that in terms of the said policy 60% marks were reserved for academic qualifications and 40% were reserved for interview. This balance he adds was imperative as the competence of a candidate for a particular post cannot be assessed merely on academic qualification and some of relevant considerations are his communication ability, his practical understanding of men and matters and his grasp over current affairs. These things can only be measured through interview.
3. Respondent No,1 submits that he was not selected for the post of Patwari although he had a brilliant academic record; that he obtained 43% marks in academic background but he was knocked out in interview by giving only 18 out of 40 marks, while others who were selected were given 35 marks out of 40. He adds that he was M.A. In Punjabi whereas other candidates who competed for the said post were matriculates.
4. We have heard learned Law Officer and the respondent-writ petitioner and have given anxious consideration to the submissions made.
5. Appointments to a civil service of the Province or to a civil post in connection with the affairs of the Province have to be made in prescribed manner as mandated in section 4 of the Punjab Civil Servants Act, 1974. Rule 3(i) of the Punjab Civil Servants (Appointments and Conditions of Service)
Rules, 1974 provides that appointments to posts shall be made by promotion, transfer or initial recruitment as may be prescribed. Rule 16 of the afore-referred Rules provides that initial recruitment on regular basis to posts in BS-16 and above and as such posts in BS-11 to 15 are to be notified by the Government and would be filled on the recommendations of the Punjab Public Service Commission. Under Rule 17 of the Rules ibid the posts which do not fall within the purview of Punjab Public Service Commission are to be filled by the appropriate Committees/Board. With regard to posts in BS-1, the Rules mandate that such posts shall be filled on merit after advertisement of vacancies in newspapers. In terms of the afore-referred Rules, the Government of Punjab has been issuing Recruitment Policy and amending the same from time to time. Admittedly earlier on in the recruitment policy enforced vide letter dated 23-2-1994, the selection criteria, inter alia, envisaged 80-20% weightage to academic qualifications and interview marks respectively for the posts in BS-1 to BS-15. This ratio was maintained even in the recruitment policy as amended in 2003. However a change was brought about for the first time in the recruitment policy of 2004 whereby 60% marks were allocated for academic qualifications and 40% for interview. As to why this change was brought about, the only explanation given in the comments submitted by the appellant before the High Court was that the Provincial Government had the power to do so and that a decision in this regard . Was taken by the Provincial Cabinet in its meeting held on 23-2- 2003. Para-4 of the comments submitted reads as follows:-- "As regards raising the interview marks from 20 to 40 marks, it is added that in pursuance of a decision taken by the Provincial Cabinet in its meeting held on 23-3-2003, a Cabinet Committee for Recruitment was constituted vide Notification dated 24-3-2003 (copy enclosed) which was tasked, inter alia, to review the existing Recruitment Policy. Accordingly, based on the recommendations of the Cabinet Committee, the Recruitment Policy 2004 was issued vide circular letter No,SOR-IV (S&GAD)10-1/2003 dated 17-9-2004 (copy enclosed), which is in general and not discriminatory in any manner against any individual. The rest of the para is irrelevant."
6. It would be pertinent to refer to the weightage given to academic background and interview by the Public Service Commissions both at the Federal and Provincial levels. A perusal of the rules for Combined Competitive Examination-2011 issued by the Punjab Public Service Commission for recruitment to the posts of Provincial Management Service (BS-17), Excise and Taxation Officer (BS- 17) and Assistant Director Local Fund Audit (BS-17) indicates that the ratio of marks for interview is not more than 15 % of the total marks which are 1200.
7. Similarly in the Rules for Competitive Examination (CSS) 2011, 300 marks have been allocated for the interview whereas 1200 marks are for written test in various subjects. Thus the weightage of written and interview marks is not beyond 80-20 per cent.
8. The issue of weightage of written examination and interview/viva voce has been a subject of judicial comment in other jurisdictions as well. In Lila Dhar v. State of Rajasthan and others (AIR 1981 SC 1777), the selection for the post of Munsifs was challenged, inter alia, on the ground that undue weightage was given to the interview/viva voce in that 25 % marks were allocated to viva voce under the rules and therefore it as alleged that selection was arbitrary and violative of Articles 14 and 15 of the Indian Constitution. While dismissing the petition, the Court observed at page 1782 as follows:- As already observed by us the weight to be given to the interview test should depend on the requirement of the service to which recruitment is made, the source- material available for recruitment, the composition of the interview Board and several like factors. Ordinarily recruitment to public services is regulated by rules made under the proviso to Art. 309 of the Constitution and we would be usurping a function which is not ours, if we try to redetermine the appropriate method of selection and the relative weight to be attached to the various tests. If we do that we would be rewriting the Rules but we guard ourselves against being understood as saying that we would not interfere even in cases of proven or obvious oblique motive."
9. In Ashok Kumar Yadav v. State of Haryana (AIR 1987 SC 454), the selection to the posts of Haryana Civil Service was challenged, inter alia, on the ground that the allocation of 200 marks for viva voce test out of total of 900 marks for generality of students and a total of 600 marks for ex- servicemen was arbitrary and excessive and had the effect of distorting the entire process of selection by introducing in preponderant measure subjective element which could facilitate arbitrariness and manipulation and it was accordingly unconstitutional as involving denial of equal opportunity in public employment. The Court issued direction to the. Haryana Public Service Commission that selections to be Made in future shall be on the basis that the marks allocated for the viva voce test shall not exceed 12.2% in case of candidates belonging to the general category and 25% in case of ex- service officers. It as suggested that this percentage should also be adopted by the Public Service Commissions in other States, because it is desirable that there should be uniformity in the selection process throughout the country and the practice followed by the Union Public Service Commission should be taken as a guide for the State Public Service Commissions to adopt and follow.
10. In Pakistan both at the Federal and Provincial levels, the Public Service Commissions in the selection criteria have kept a balance between the weightage to be given to the written test and to the interview. The weightage given to the interview is not more than 15% in case of Punjab Public Service Commission, 23% in case of Sindh Public Service Commission, 20% in case of KPK Public Service Commission and 24% in case of Balochistan Public Service Commission. Similarly the Federal Public Service Commission does not give more than 20%, weightage of the total marks to the interview. The comparative weightage criteria being followed both at the Provincial and at the Federal level is balanced and it would be in fitness of things if the afore-referred balance is kept in view in the recruitment process in all other public service departments as well
11. Although in the selection process of Patwari, subject matter of this petition, an undue weightage was given to the interview thereby making the process vulnerable to subjective considerations, yet the basic question which should have weighed with the learned High Court in exercise of jurisdiction under Article 199 of the Constitution was as to whether in those proceedings it could interfere into the policy making domain of the executive authority and strike down a provision of the rule or the recruitment policy.
12. The principle of trichotomy of powers is one of the foundational values of Constitution of Pakistan and over a passage of time, this Court in several judgments has reiterated its importance as a norm of constitutional law. In Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), the Court at page 347 held as follows:- "It is also to be borne in mind that Constitution envisages the trichotomy of powers amongst three organs of the State, namely the legislature, executive and the judiciary. The legislature is assigned the task of law making, the executive to execute such law and the judiciary to interpret the laws.
None of the organs of the State can encroach upon the field of the others. [State v. Ziaur Rahman (PLD 1973 SC 49), Federation of Pakistan v. Saeed Ahrnaci Khan (PLD 1974 SC 151), Government of Balochistan v. Azizullah Memon"(PLD 1993 SC 341), Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426), Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504), Syed Zafar Ali Shah v. General Pervez Musharraf (PLD 2000 SC 869), Nazar Abbas Jaffri v. Secy: Government of the Punjab (2006 SCMR 606), Sindh High Court Bar Association's case (PLD 2009 SC 879), Smt.
Indra Nehru Ghandi v. Raj Narain (AIR 1975 SC 2299) and Minerva Mills Ltd. v. Union of India (AIR 1980 SC 1789)1.
13. The Court vide the impugned judgment did not grant any substantive relief to the respondent- writ petitioner because the Court found that, "with their appointments a lawful right had already been accrued in their favour because whatever the situation is, their appointment could not be declared illegal at this stage because in the process of their appointment those appointed persons were not at fault and as such they could not be non-suited at this stage." However, with regard to the prayer made in the writ petition that the Recruitment Policy dated 17-9-2004 be declared as unconstitutional, the Court on the touchstone of "reasonableness" partly allowed the petition and, directed "that in the forthcoming selection, the marks of interview should not exceed 25% to the total marks of selection and the Government of Punjab, shall take steps to amend the policy dated 17-9-2004 accordingly." This by implication had the effect of striking down the weightage ratio (test and interview) given in the Recruitment Policy under challenge.
14. We may observe with respect that the principle of trichotomy of powers escaped the notice of the learned Judge. The Recruitment Policy was framed by the Government of Punjab as part of the delegated legislation and its provisions could not have been struck down on vague considerations of being "unreasonable" or likely to be misused. Because the presumption is that those who exercise such powers would do it in a bona fide manner and if the said power is exercised in a mala fide manner, it is the particular mala fide act which can be challenged and struck down. The provision does not become unconstitutional, violative of fundamental rights or unreasonable simply because it could be abused because any provision of law can be misused if the wielder of power so intends.
15. The framing of the recruitment policy and the rules thereunder, admittedly, fall in the executive domain. The Constitution of Islamic Republic of Pakistan is based on the well known principle of trichotomy of powers where legislature is vested with the function of law making, the executive with its enforcement and judiciary of interpreting the law. The Court can neither assume the role of a policy maker or that of a law maker. To the said extent the impugned judgment is not sustainable.
Consequently, this appeal is allowed and the impugned judgment is set aside.
16. Before parting with the judgment, we may observe that although the Court would refrain from substituting the criterion of selection laid down in the Recruitment Policy, yet the petitioner government would be well advised to examine the practice being followed by the Provincial Public Service Commissions and the Federal Public Service Commission in Pakistan so as to make the selection exercise more transparent, credible and confidence inspiring by suitably amending rules with a view to avoid preponderance of subjectivity. So far as respondent-writ petitioner is concerned who felt aggrieved and alleged misuse of the wieghtage criteria of written and interview, a copy of this judgment shall be sent to the Member (Revenue), Board of Revenue, Government of Punjab, Lahore who shall look into it and examine the desirability of passing an appropriate order under the law in this regard.