SALMAN HAMID, J---- Through the present Appeal under section 7(3)(d) of the Federal Public Service Commission Ordinance, 1977 (Ordinance, 1977), Muhammad Ashraf Sangri (Appellant), has challenged the Orders dated 22-9-2011 and 20-8-2011, (Orders), passed by the Federal Public Service Commission, (Respondent No,2), communicated to him, (Appellant) by the Assistant Director, (CE), (Respondent No,3). Per appellant's counsel, the orders are in violation of the principles of natural justice and an outcome of improper exercise of discretion by the respondent No,2 and that such are also in desecration of section 24-A of the General Clauses Act.
2. In a nutshell, case of the appellant was that he appeared for the CSS competitive examination for the year 2010 in which he secured 704 marks in the written test which were highest in Sindh urban and also succeeded in medical examination and psychological assessment. Despite this achievement, it was contended, that the appellant was declared fail in viva voce for which no reason was doled out by the respondent No,2. It was then, stressed that after such effect in the viva voce, the appellant made a statutory Representation to the Member. Federal Service Commission, Islamabad under section 7(3)(a) of Ordinance 1977 read with Rule 18(a) of the Rules for Competitive Examination, 2010, wherein it was represented that he, (Appellant) was ready and willing to reappear for viva voce, inasmuch as by such course no other candidate shall suffer as there were sufficient number of seats of Sindh (rural/urban) and that out of total 52 seats, available for Sindh, urban, for year 2010, only 13 had been filled in by appointment and 39 seats were still lying vacant. It was also asserted via Representation that total results for Province of Sindh in the year 2010 of the competitive examination was only 1% i,e, 37 from totality of 3700 seats and that the appellant was the only candidate who was failed in the viva-voce, which was highly dubious, given his extraordinary performance in the written test and getting through smoothly in the medical examination and psychological assessment. It was stated that Representation was rejected; so also, review application dated 8-9-2011 that was preferred there-against in terms of the respective Orders. It was, therefore, argued that the orders are based on non-application of mind and Law and without rationale/reasons. It was also mentioned that the grades in written test, medical examination and psychological assessment were not refuted. Representation was simply rejected on the ground that viva voce was carried out rightly per Rules for the Competitive Examination 2010 and that no review was possible for viva voce.
3. It was urged that the exercise of discretion by respondent No,2 was not in accordance with the law as it failed to apply its mind to the facts of the case and the record and the performance of the appellant and that the viva voce of the appellant was not be read in isolation but as a part of entire appointment procedure which included the written test, mental examination and psychological assessm ent. It was also urged that the psychological assessment was designed to assess suitability of a candidate with particular importance to the moral and ethical qualities together with assessm ent of candidate's intelligence and presence of mind, strength of character and potential qualities. It was stressed that the appellant having passed the psychological deemed to have possessed the above qualities and attributes which were ignored altogether by the Chairman and one of the Member of the Interview Board and amply shows that such persons/authority exercised discretion indirection to the settled norms and practice which were to be applied at the time of interview by the Board. It was stressed that the respondent No,1 being a statutory body was bound to give proper reasons to substantiate its orders as mandated under section 24-A of General Clauses Act. Such having not followed, the Orders are in breach thereof. It was also contended that the discretion had to be exercised in a structured manner and in accordance with the law and it could have not been exercised in the manner that rights of the appellant are negated inasmuch as the appellant had a right, under the Constitution, to be treated in accordance with law. In support of his contentions, learned counsel for the appellant relied upon Human Right Cases Nos.16360 of 2009, 1859-S and 14292-P 2007 reported as PLD 2011 SC 37, Suo Motu Case No,18 of 2008 (PLD 2011 SC 927), Tariq Azizuddin and others (2010 SCMR 1301) and Irfan Naseer Baig and another v. Province of Punjab through Secretary S&GAD and 2 others (2011 PLC (C.S.) 1537).
4. Learned Standing Counsel for the respondents resisted the Appeal. It was argued that it, (Appeal) was not maintainable in terms of section 7(3)(c) of Ordinance, 1977 and under Rule 18 of the Rules for Competitive Examination (CSS 2010). It was also argued that the appellant waived and acquiesced his right of appeal inasmu ch as at the time of filling up the forms for the competitive examinations, it was agreed that if he fails in any of the tests, he would not prefer any appeal therefor. On facts it was argued that all the actions taken by the respondents are in accordance with law and the prescribed criteria was adopted for testing the candidates and if the Appeal is allowed, it will amount to discrimination and would be in violation of the provisions of the Constitution. It was also mentioned that since the Rules do not provide for reappearance in viva voce nor was it practicable in any competitive examination, the same was declined. As to the vacancies of particular competitive examination and seats, it was mentioned that the vacancies of a particular Province which remain unfilled are carried forward to the next competitive examination, to be filled from the quota of the same Province and remain intact. It was also mentioned that written part of the competitive examination and viva voce are two different criteria and each one had to be qualified. Securing higher marks in written test by no stretch entitle the appellant to qualify in the viva voce. It was therefore asserted that the appeal was not maintainable and the same be dismissed.
5. I have considered arguments of the learned counsel on either end. Appellant comes from a humble background who received his early education in Peer Jo Goth, Sindh and graduated from Shah Abdul Latif University, Khairpur, Sindh. It seems that by sheer determination, hard work and zeal to progress and prosper and full faith in Allah, the appellant appeared for the Competitive Examination 2010, despite failing in the last one and this time secured highest marks in the written test Sindh urban; also got through the medical examination and psychological assessment but had to face negative result in the viva voce. Representation and review those were preferred did not bear fruits when by Orders both were rejected in a slipshod manner. Present Appeal was the result of above unfolding.
6. There were three members and a chairman in the board who conducted viva voce. Two members passed the appellant, while one of B the member and the Chairman did not (record summoned). It may be noted that while written test is designed to gauge ability of an incumbent as to the knowledge of various subjects which comprised both compulsory and optional; psychological assessm ent is planned to measure abilities, attitude and personality characteristic of such an incumbent with special regard to his aptitude for civil services. From the Rules for Competitive Examination (CSS) 2010, it appears that the form marks assigned for viva voce also reflect performance on the psychological test. At the time of viva voce, per Rules, entire record of both academic and extra mural is available with it (board) and the incumbent is asked questions on matter of general interest, the object whereof, it seems, is to assess the suitability for the service for which the incumbent has entered for, so that such incumbent is assessed by the Board at which time moral and ethical quality of an incumbent is also assessed, together with intelligence and alertness of mind so also incumbent's vigour and character and his potential qualities of Leadership. The Board per Rules, also considers his extra mural activities such as sports, debates, hobbies C etc. And their effect on his physique and character. A student failing in viva voce is not considered for appointment to the government jobs. Given the above standard, one may reach to a conclusion that a person who has secured highest marks in written test; also passed medical examination and also cleared psychological assessment which is basically planned to assess the ability and attitude and personality characteristic of a given candidate with regard to his aptitude for the civil services and also assessed, not just good, but above average could not make it through viva voce seems to be a long short.
7. Though usually the courts would not like to and/or do not interfere in the running and/or authority of the board of the nature under-point, would also not stay away and aloof when a case of the like in hand is brought to its notice and in special circumstances may look into the exercise of discretion by a given constituent to reach to a conclusion to see if such was exercised rightly or wrongly and legally or otherwise. Given such milieu, it is improbable that appellant having been assessed by twelve examiners from different walks of life in twelve subjects and all of whom passed him with flying colors with the result that he secured highest marks in Sindh urban, where the passing percentage was only 1% would do bad in viva voce. Again at the level of medical examination and psychological assessment, the appellant overcame its rigours when he cleared individual and collective psychological and personality assessment before the chief psychologist and her team when no fault was found regarding his knowledge and personality and he was graded as "A" in the report (record was summoned). Even viva voce outcome was not unanimous.
It seem specious that the appellant who was hardened by more than a dozen persons and was cleared by all would stumble in viva voce. It is unlikely inasmuch as in the written tests; in the medical examination and in psychological assessment appellant got through and not in viva voce.
Not all could be wrong in assessing the appellant. Had there been a seesaw case, the things would have been different. Under the circumstances the chairman and a member, it appears have exercised discretion in the manner not conducive for competitive examinations. It is well-settled and embedded by now that when a discretion is exercised by an authority it must be exercised and structured by good reason and lawfully and should not be flimsy, lame or without any reasoning and that the reasoning should always be the first criteria to reach to a conclusion at a time when a discretion is exercised for it is the prime duty and function of the authority to act fairly and in a reasonable manner. It is not clear as to what prevailed on the learned member and the chairman in giving low marks when the other two members had also assessed the appellant and passed him.
8. At this juncture it would be advantageous to note that guidance for members of the interview board for the viva voce test of qualified candidates are in field since 2008 and the members who are assessing a candidate have to allow a procedure at the interview as given in clause 6 of the above mentioned guidelines of 2008, sub-clause (t) of which reads, "these marks are to be based on the overall performance of the candidate and not in response to the Members own questions. In fact it is not necessary that every member must ask some questions. Assessment of a candidate at the interview is a collective responsibility of the Board and of its Members taken together"
(emphasis supplied (sic)). This would show that the Board/Member has to look at the overall performance of the candidate and that the assessment of the candidate at the interview is a collective responsibility to be taken together. If the Rule is applied to the present case, it would be seen that neither overall performance of the appellant, which was above average, was appreciated, nor the result of the viva voce was collective nor was it taken together. Result of viva voce, by two members was in favour of the appellant.
9. In Julius v. Lord Bishop of Oxford (1880) 5 AC 214, Earl Cairns CJ observed, "where a power is deposited with a public officer for the purpose of being used for the benefit of a person .... That power ought to be exercised, and the court will require it to be exercised". What could be gauged from this observation is that the conclusion arrived at by an authority by exercising discretion has to be in configuration of fine rationale though the conclusion could be either way however must not be in a picky fashion and if found in such a fashion, the same, in all fairness, must brought down. Supreme Court of Pakistan in the case of Amanullah Khan and others v. The Federation of through Secretary, Ministry of Finance Islamabad and others (PLD 1990l 109221 held that, "Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Culp Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open, precedents and fair informal procedure. Somehow, in our context, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times". In Suo Motu case No,18 of 2010 (Violation of Public Procurement Rules, 2004) PLD 2011 SC 927, in paragraph 39 it was observed by Supreme Court that, "It is an unwritten rule of the law that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. [Smt. Shalini Soni v. Union of India ((1980) 4 SCC 544]. By now, the parameters of the court's power of judicial review of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well- settled. Indisputably, if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influence by irrelevant or extraneous matters the Court would be justified in interfering with the same. [Commissioner of Income Tax v. Mohindra (AIR 1984 SC 1182)]. The exercise of constitutional powers by the High Court and the Supreme Court, 'under the relevant Articles, have been categorized as power of "judicial review". Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Articles dealing with Fundamental Rights, every, executive action of the Government or other public bodies, including instrumentalities of the Government, or those which can be legally treated as authority, if arbitrary unreasonable or contrary to law, is amenable to the writ jurisdiction of the Supreme Court or the High Courts and con be validly scrutinized on the 'touchstone of the Constitutional mandates. [Common Cause, A Regd. Society v. Union of India (AIR 1999 SC 2979))."
10. Gauging of the above precedent would bring me to the close that the discretion exercised by an authority is not unfettered and is harnessed with: open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure which, it seems, in the present case missed out by the authority concerned while exercising, discretionary powers who also missed out on Rule 6(t) of Guidelines of 2008, whereby overall performance of the candidate was to be looked into and that assessment of such candidate was to be seen collectively and together by the Members. Having observed as much, I am of the opinion that in the present case, apparently discretionary a Member and the Chairman in testing the appellant had not been exercised in a manner it ought to have been exercised and it seems that it was also in violation of Rule 6(f) of Guidelines of 2008 and that overall performance of the appellant was also not looked into and/or such was ignored.
11. The arguments of the learned standing counsel that the appellant having agreed in terms of Rules for Competitive Examination of (CSS) 2008 that decision of the respondent would not be challenged and that therefore the appellant waived and acquiesced his right of appeal, to say the least is preposterous as no right under the law and/or guaranteed under the Constitution could be waived or acquiesced as propounded by learned Standing Counsel and the appellant has had every right to challenge the orders, more particularly when according to him (appellant) same were outcome of indiscretion, exercised by the authority concerned. The other argument that under section 7(3)(c) of Ordinance. 1977, the appeal was not maintainable, it may be observed that by way of clause 3(d) of same section 7 of Ordinance, 1977, remedy by way of appeal to the High Court within a period of 30 days from the date of decision is provided which remedy was availed of by the appellant.
12. For the foregoing reasons, this appeal is allowed and the orders (22-9-2011 and 20-8-2011) are set aside and as a result, the respondents are directed to declare the appellant fit for appointment as a Civil Servant in the all Pakistan Services, Civil Services of the Federation and the Civil Post in connection with affairs of the Federation and Notification/Letter of Appointment in favour of the appellant be issued within fortnight from the date of this decision. The appeal is disposed of accordingly.