' UMAR ATA BANDIAL J.--- The petitioners were candidates for the post of patwari in the selection process that was conducted in the year 2006 by the District Recruitment Committee ("DRC")
Faisalabad under the Recruitment Policy, 2004 of the Government of Punjab. The respondent No,1 EDOR, Faisalabad was Chairman of the DRC which comprised of five other members drawn from the revenue department. The respondent No,1 advertised 17 vacancies of the post of postwar in different Tehsils of District Faisalabad for which interviews were to be held on 25-8-2006. The eligible candidates were duly interviewed and a merit list was prepared by the DRC on 8-12-2006 or thereabouts.
2. The successful candidates notified by the respondents for Tehsil Saddar, Faisalabad comprised of four persons who are impleaded as respondents Nos.6 to 9 herein. Two of the said respondents secured C-grade in matriculation examination whilst the remaining two secured D-grade in the same. Only the respondents Nos.6 and 8 qualified for additional marks for higher qualification.
Ironically the respondent No,9 who secured the lowest D-grade in his matriculation examination and lacked a higher qualification scored the best of the lot at 36 out of 40 marks in his interview.
Likewise the respondent No,8, who got a D-grade in matriculation examination, secured an impressive 33 out of 40 marks in his interview. The respondent No,7 got C-grade in the board examination but managed to get 34 marks in his interview and respondent No,6 having secured C- grade in the board examination and 5 marks for higher qualification succeeded to obtain 31 marks in his interview.
3. On the other hand, both the petitioners Nos.1 and 2 are graduates who secured B-grade in their matric examination and received additional marks for higher qualification managed to score only 15 marks and 12 marks, respectively, in their interviews. The petitioners allege in their petition that marks in the interview stage were allocated arbitrarily and unfairly so that true merit amongst the candidates was ignored to accommodate favorites.
4. Clearly, on account of close competition in the segment reserved for academic performance of candidates carrying 60% marks, the outcome of the selection process was determined by award of the 40% marks reserved for the interview stage conducted by the DRC. With such a huge weightage given to the interview performance of candidates, it was incumbent upon the respondent DRC authorities to devise a marking criteria and mechanism for the award of interview marks to candidates in order to regulate their discretion. However, when the respondent authorities including respondent No,1 Chairman of the DRC who appeared in Court was asked for the record of the interviews conducted by his Committee, he confirmed the position on record that except for the merit list no other material fixing criteria and mechanism of assessment of candidates nor individual mark sheets of candidates was maintained by the members of the DRC nor therefore retained on record.
5. The only available record of the interviews is therefore the merit list which is signed by four members and by a representative of the fifth member of the DRC. The respondent No,1 Chairman was asked by the Court as to how he had allocated the 40 marks reserved for the interview stage of candidates in particular what basis of assessment of candidates had been adopted by him. He was silent as no criterion was fixed to test the capability of the candidates for example their personality, character, knowledge, skill or experience which amongst others are ordinarily some of the subjective points addressed in the interview of a candidate. Since no uniform regulation of the discretionary interview marks was adopted by the members of the DRC, it is quite obvious that the entire process of interviews conducted by them was casual, informal, un-structured and personal without any record to show or justify their joint and several opinions.
6. In the foregoing background the learned counsel for the petitioners has stressed the lack of transparency in the impugned process of appointments to public posts of Patwaris. In this regard he has referred to the seminal judgment of the Hon'ble Supreme Court in Mushtaq Ahmad Mohal v.
Hon'ble Lahore High Court Lahore (1997 SCMR 1043). It is observed therein that the constitutional requirement, inter alia, enshrined in Article 18 of the Constitution enjoins that subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. This includes the right of a citizen to compete and participate for appointment to a post in any Federal or a Provincial Government department or an attached department or autonomous bodies/corporations etc, on the basis of open competition, which right he cannot exercise unless the process of appointment is transparent, fair, just and free from any complaint as to its transparency and fairness.
7. The essential principle laid down in the said judgment is that all appointments to public offices must be based on transparent competition. In the present case, appointments made to the post of patwari are swa yed by marks awarded in a subjective interview assessment of candidates which is neither regulated by settled criteria of assessment of the candidates nor substantiated by any record of deliberations of the DRC for arriving at their decisions. There is accordingly force in the argument that a selection process, which is entirely subjective, unguided and undocumented can hardly be fair and transparent and is therefore illegal.
8. The utility and limitations of selection interviews have been considered in depth in our neighboring jurisdiction. The leading judgment in this behalf is Ashok Kumar Yadav and others v.
State of Haryana and others (AIR 1987 SC 454) wherein 22.2% marks reserved for a viva-voce test was determined to be excessive, arbitrary and discriminatory. That case has been followed with approval in Vikram Singh and another v. The Subordinate Services Selection Board, Haryana and others (AIR 1991 SC 1011). The lesson of experience acknowledged in that precedent is that an interview assessm ent is suitable merely for testing certain subjective features of a candidate's ability and aptitude but it cannot become the exclusive test for determining his merit. In the foregoing context this Court in lmran Hussain v. WAPDA and others (PLD 2010 Lahore 546) dealt with the validity of selection to public posts made solely on the basis of walk-in interviews and struck down the appointments on the criteria of good governance, transparency and fairness, primarily because the selection process suffered from arbitrariness. The demerits of an interview based selection process noted in the said judgment are given below:--- "25 It is settled law that administrative discretion has to be structured, reasoned, rational, logical and objective. One of the ways to arrive at such a structured exercise of discretion is to fashion it on a well-thought out, carefully deliberated objective standard. This helps test various faculties of the interviewee especially those, which the institution concerned requires. The standard can, therefore, cover experience, alterness, initiative general, aptitude behavior knowledge. Dependability, etc. Which form a uniform yardstick, gauge, scale or criteria for the exercise of discretion. Discretion without a uniform yardstick or a formula is a loose jumble of haphazard human subjectivity..."
"26 Good governance and institutional building requires that the requirements, demands and needs of the institution are tailored into the objective criteria/test so that the best suited human resource is selected for the post. The proposed criteria can subdivide total marks into areas like; experience, skill aptitude, educational background intellect, extra-curricular, personality, ethics, etc. So the interviewers have a prefixed format to apply their mind on and disallow unchecked subjectivity from clogging them the minds."
"35. Constitutionally, unlimited and unchecked exercise of discretion is inherently discriminatory. It has no internal check to ensure uniformity and objective application of mind across the board. It, therefore, extends unequal treatment to equals."
9. Just as unguided discretion leads to arbitrariness so do a high percentage of marks reserved for the interview stage in the selection process. The view of this Court expressed in Syed Muhammad Raza v. General Manager, WAPDA and others (1994 MLD 1647) sheds light on the damage caused on such account:--- "8. The reservation as high as 50% of marks which is likely to affect the entire nature and complexion of the selection has been deprecated and disapproved by this Court in its recent judgment in Writ Petition No,1488 of 1991 decided on 15-1-1994 in which it has been held that adoption of such a procedure would be unfair, discriminatory and not sustainable. It has been observed that although much can be said for holding selection on the basis of interview but keeping in view the dictates of justice and equality clause in the Constitution the reservation of marks for interview should not he of such a high percentage which could lead to arbitrariness and unfairness which must be avoided. In the present case, injustice done to the petitioner is manifest.
He stood first by obtaining 79 marks out of 100 in the written test but was not selected on account of awarding of only 36 marks in the interview. One of the reasons for striking down the selection on the basis of interview is that no record of reasons for awarding marks in the interview is maintained as it is based purely on the subjective assessment by the Selection Committee during the course of which the misuse of powers cannot be ruled out. For this reason also the impugned selection cannot be upheld."
10. Learned Addl.A.-G. Has objected that the present petition filed in 2009 is barred by laches as it challenges a selection process conducted in 2006. Learned counsel for the petitioner has explained that the first petition on the present grievance bearing W.P.No,13737 of 2006 was filed by the petitioner timeously. It was decided on 5-7-2007 with a direction of remand to the BOR. The present petition has been filed upon refusal by the Secretary BOR on 4-2-2009 to grant any relief to the petitioners.
11. Learned Addl. A.-G. Has next objected that the Recruitment Policy, 2004 has been repealed. A fresh policy for appointment of patwaris framed in 2009 has raised the level of minimum qualification to include computer literacy. Therefore the petitioners who lack the said qualification are ineligible to be appointed to the post of patwari under the current scheme. Upon a Court's query learned Addl. A.-G. Has informed that no recruitment whatsoever has yet been undertaken by the Provincial Government under the new policy of 2009. In fact the said policy has not been enforced by the provincial government. With regard to the criterion of computer literacy, learned Addl. A.-G. Submits on instructions that no qualification in the subject whether a diploma or a degree is prescribed for eligibility in the hitherto moribund Recruitment Policy, 2009.
12. The recruitments in dispute before the Court were made in 2006 under the Recruitment Policy, 2004. The petitioners are both graduates and have qualifications well above the matriculation threshold fixed as qualification for eligibility under the recruitment policy of 2009. The criteria of computer literacy is of marginal significance because familiarity with and not a qualification in that skill is required. Given the opportunity and time for preparation, the requisite skill can be picked up swiftly, if it is not already possessed, by the petitioners.
13. In the present case the Court finds that the respondents have not been able to justify the impugned selection process on the touchstone of transparency, good governance and fairness.
These are attributes of all lawful executive actions in particular appointments made to public posts. Resultantly, the selection process adopted by the respondents suffers from arbitrariness, unguided exercise of discretion and absence of record to justify the validity of the appointments made. Although in the foregoing circumstances, this Court is inclined to strike down the entire selection process adopted by the DRC, however, learned Addl. A.-G. Points out that any such step would lead to disturbance and uncertainty among many provincial government employees because thousands of appointments have been made pursuant to the Recruitment Policy, 2004 wherein the same impugned procedure solely of interview assessment has been adopted for selection of candidates as in the present case.
14. He states on instructions that there are three vacant seats of patwari in Tehsil Saddar, District Faisalabad, which were never filled in the selection made in the year 2006. Learned counsel for the petitioners urges that the petitioners should be appointed against the said vacancies. The acceptance of such a prayer would tantamount to aggravating the wrong already committed by the respondents. It is accordingly directed that the remaining vacant seats of patwari shall be filled by open competition based on academic achievement, a written examination comprising not less than 70% marks being counted towards selection. The remaining 30% marks shall be reserved for interview but such marks shall be sub-divided and awarded on the basis of relevant criteria determined with the approval of the respondent No,3/SMBR for assessing a candidate's ability and suitability. The above ratio of marks and criteria is laid down upon an appreciation and application of the aforenoted law governing appointments to public posts.
15. In the above context it is further directed that competition for the said posts shall not be confined to the petitioners alone but shall be open to the public on the foregoing criteria. The candidates in the competition shall be assessed on merit including with reference to their computer literacy. In the circumstances of the case, the respondents are directed not to object the petitioners' candidacy for being overage in the competition that is to be held.
16. Petition disposed of. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.