' AQEEL AHMED ABBASI, J.---Through instant petition, the petitioner has sought relief from this Court with the following prayers:--
(i) to direct the concerned respondent No,1 to declare the petitioner has correctly answered 50 questions in his N.T.S. Test held on 5th August, 2012 for the posts of Civil Judge and Judicial Magistrate rather than 49 marks;
(ii) to declare that the petitioner is eligible to appear in the Written Test to be conducted:
(iii) issue Writ of Mandamus whereby direct the Officer respondents to put the petitioner's name in the list of successful candidates of Preliminary Recruitment Test for the appointment of Civil Judge and Judicial Magistrate, conducted by N.T.S. (iv). Any other/further relief which this Hon'ble Court may deem fit and proper in the circumstances of this case.
2. Brief facts as stated by the learned counsel for the petitioner are that petitioner is a eligible candidate who applied for the appointment of. The post of Civil Judge and Judicial Magistrate (BPS-18) in the Province of Sindh, which was advertised by the respondent through advertisement dated 4-10-2011. The petitioner participated in the MCQs test held on 5-8-2012 at Sindh High Court, Karachi, under the supervision of respondent No,1 (National Testing Services Pakistan) vide Roll No,986. The result of the candidates, including the petitioner, was announced after two days, wherein the petitioner was awarded 47 marks. However, on the representation of the petitioner to the respondent No,1, pointing out certain errors and mistakes in questions Nos.15, 30 and 78 of yellow answer key, the respondent No,1 rectified such mistakes in respect of questions Nos.15 and 30 and added 2 marks in the total of the petitioner (i,e,47+2=49), whereas, in respect of question No,78, the request of the petitioner was declined.
3. Learned counsel for the petitioner has submitted that under the circumstances the petitioner could not qualify for the second written test as requirement to qualify for the second test was that a candidate must secure 50 marks in the first MCQs test. Per learned counsel, since the petitioner had no other remedy to get such mistake corrected from any forum, therefore, instant petition has been filed with the request that the respondent No,1 may be directed to treat the answer of the petitioner to question No,78 (yellow answer key) as correct and to add one more mark in the total of the petitioner i,e, (49+1=50) as according to the learned counsel, the petitioner has marked the correct option i,e, "A" 'watching a movie' in response to such question, so that the petitioner may become eligible to participate in the second test to be scheduled shortly. Learned counsel for the petitioner has further argued that in any case there can be more than one correct answers of the question under reference as evident from the perusal of the passage from which such question was proposed, therefore, the answer of the petitioner may also be considered as correct answer.
4. Learned counsel for the petitioner, during course of the arguments, has drawn the attention of this Court to pages Nos.19 and 21 of the petition which according to learned counsel is the copy of the green answer sheet and referred to question No,3, which per learned counsel, is identical to question No,78 of yellow answer key. Learned counsel has readout the written comprehension available at page 19 and submitted that several conditions, which can be found in a patient of narcolepsy have been mentioned, whereas there can be hardly one reply to the question formulated by the respondent No,l. It has been further stated that option "A" 'watching movie' in the understanding of the petitioner is close to the description i,e, watching TV, hence the same is correct answer of question No,78 of the yellow answer key. It has been further contended that the answer which has been shown as correct in the yellow answer key by respondent No,1, "B" i,e, "eating in a restaurant" does not find any mention in the entire written comprehension, therefore, the same cannot be treated as correct answer. While concluding the argument, the learned counsel has prayed that instant petition may be allowed, and respondent No,1 may be directed to award one more mark to the petitioner in respect of question No,78 by treating option "A" as correct answer and further to allow the petitioner to participate in the second test.
5. On 19-10-2012 when the matter was taken up for hearing before this Court, the learned counsel for the petitioner requested that in the meanwhile, as an interim measure, petitioner may be allowed to sit in the second written test, which was scheduled to be held on 20-10-2012, whereas such permission will be subject to decision of this petition. Accordingly, this Court vide order dated 19-10-2012, allowed the petitioner to participate in the second test, which was scheduled to be held on the next day i,e, 20-10-2012, however, the same was subject to decision of the instant petition and with further observations that petitioner shall not claim any right, which may accrue to him in this regard.
6. Conversely, Mr. Saifullah, learned A.A.-G. Has raised an objection as to maintainability of the instant petition and submitted that through instant petition the petitioner has infact prayed for re- evaluation of answer book, which cannot be allowed under the constitutional, jurisdiction. It has been contended that disputed facts cannot be resolved through constitution petition, whereas, a writ cannot be issued against the respondent No,1, who is a private entity. In support of his contention, the learned A.A.-G. Has placed reliance in the case of Chairman Board of Intermediate and Secondary Education v. Ali Mir 1984 SCM R 433.
7. Similarly, Mr. Afaq A. Saeed, learned counsel for the respondent, having filed counter affidavit/parawise comments on behalf of the respondent No,1, has also raised objection with regard to the maintainability of the instant petition under similar grounds as raised by the learned A.A.-G. Learned counsel has also referred to the written explanation of question No,78, which is reproduced hereunder, and submitted that from perusal of the following passage it can be seen that the correct answer of the question under dispute is option "B" i,e, 'eating at a restaurant'.
"As described in lines 1 and 2 of the passage, "People who suffer from. Excessive drowsiness during the daytime may be victims of a conduction known as "Narcolepsy". According to the lines 4 and 5 of the passage "Narcoleptic may fall asleep at unusual or embarrassing time. They may doze while eating, talking, taking shower, or even driving a car. The given question (78) is based on the line 1 to 5 of the passage. In the given four (4) options of the question, only option (B), "Eating at a restaurant" is correct answer as "sleeping while eating at a restaurant" is an unusual or embarrassing situation. While other option (A) "Watching a movie", option (C) "Lying on the beach", option (D) "Taking a long airplane trip" are the situation where a person can sleep (without being embarrassed). Hence persons having these conditions is not likely to be narcoleptic as required in the question."
' It has been submitted by the learned counsel for respondent No,1 that the instant petition, besides being not maintainable, has no merits and the same may be dismissed in limine with cost.
8. We have heard both the learned counsel as well as learned A.A.-G. And perused the entire record produced by the parties. We may first take up the objection as to maintainability of the instant petition raised by the learned A.A.-G., and would observe that in view of the fact that the respondent No,1 themselves, on the representation of the petitioner, have rectified the answers of two questions, therefore, the possibility of an error in the answer of remaining third question, which is subject matter of the instant petition, cannot be ruled out. Moreover, a right of an aggrieved person, who is otherwise eligible' to participate in the competitive recruitment process, cannot be denied on technical grounds. In view of hereinabove stock of the events, we are of the opinion that the objection with regard to maintainability of the petition has no substance.
9. It will be advantageous to reproduce the relevant portion of the passage of question No,78 of yellow answer key to resolve the controversy raised in the instant petition, which reads as follows:-- "People who suffer from excessive drowsiness during the daytime may be victims of a condition known as "narcolepsy". Although most people may feel sleepy while watching TV or after eating a meal, narcoleptics may fall asleep at unusual or embarrassing times. They may doze while eating, talking, taking a shower, or even driving a car. Victims can be affected in one of two ways. Most narcoleptics have several sleeping periods during each day with alert periods in between. A minority of others feel drowsy almost all the time and are alert for only brief intervals. Many people with this condition also suffer from cataplexy - a form of muscular paralysis that can range from a mild weakness at the knees to complete immobility affecting the entire body. This condition lasts from a few seconds to several minutes and is often set off by intense emotions."
' The question under dispute which was raised from the above passage reads as follows:- "A person is most likely to be narcoleptic if he or she falls asleep while"
' Whereas, following options were given to the candidates out of which one answer was required to be selected.
"(A) watching a movie
(B) eating at a restaurant
(C) lying on the beach
(D) taking a long airplane trip"
' In the instant case the petitioner opted for option "A" i,e, 'watching a movie', whereas, as per yellow answer key of the respondent, the correct answer to above question has been mentioned as above option "B" i,e, `eating at a restaurant'.
10. From perusal of the passage reproduced hereinabove with particular reference to the underlined sentence, it is noted that the correct answer of the question referred to hereinabove can be found in the underlined portion of the passage which is a compound sentence starting with the word although which governs the entire sentence till comma after the word meal, whereas, the remaining sentence starts from the word narcoleptic, which continues to govern the remaining sentence till full stop after the word car. The structure of the above referred compound sentence suggests that reference has been made to two different types of persons i,e, one who may not be suffering from narcoleptics but may feel sleepy while watching TV or after eating a meal, and the others who are narcoleptics who may fall asleep at unusual or embarrassing times such as while eating, talking, taking a shower or even driving a car. Therefore, the correct answer to the above proposed question should be the one which may refer to unusual or embarrassing' times i,e, eating, talking, taking a shower or even driving a car when a narcoleptic may fall asleep. Under the circumstances, the reply to the above question appears to have been correctly determined by the respondent No,1 as option "B" i,e, 'eating at a restaurant' and not the option "A" watching a movie', as replied by the petitioner. It appears that the petitioner could not properly appreciate the construction of the passage, hence opted for an incorrect reply. Even otherwise, while exercising constitutional jurisdiction, a detailed appraisal or scrutiny of the answer sheet of a candidate or the answer key of examiner cannot be undertaken. Reference in this regard can be made to the case of Chairman Board of Intermediate and Secondary Education B v. Ali Mir 1984 SCM R 433 as relied upon by the learned A.A.-G.
11. In view of hereinabove facts, we are of the opinion that instant petition is devoid of any merits and does not require any interference by this Court in its constitutional jurisdiction, which was dismissed vide our short order dated 4-12-2012 and these are the reasons for such short order.