' FAISAL ZAMAN KHAN, J.--- This consolidated judgment shall decide Intra-Court Appeals Nos.546 and 720 of 2013. These Appeals are directed against order dated 7-5-2013 passed in Writ Petition No.26599 of 2010, through which a direction was issued to Senior Member Board of Revenue to review the process of recruitment of Patwaris.
2. Facts giving rise to the present appeals are that an advertisement was published in daily 'Insaf' dated 11-12-2004, through which applications were invited for the appointment of eleven posts of Patwaris in Tehsil Depalpur, District Okara. Muhammad Mustafa respondent No.3 in I.C.A. No.546 of 2013 applied for the said post and appeared in test as well as in interview however he remained unsuccessful and could not make it to be final appointment list.
3. Respondent No.3 seem to be persistent in his efforts and has a checkered history of filing writ petitions against the department, resume of which is as under:---
(1) Writ Petition No.16094 of 2002 was filed for challenging the appointments made in 2002 (previous appointments) which was disposed of with a direction to DCO, Okara to inquire into the matter. After inquiry, the DCO held that the allegations levelled by the petitioner are not proved;
(ii) Writ Petition No.2098 of 2005 was filed against the present appointments which was disposed of and petitioner was asked to approach the Senior Member Board of Revenue;
(iii) Criminal Original No.3911-W of 2005 was filed due to noncompliance of order passed in W.P.
No.2098 of 2005, which was also disposed of;
(iv) Writ Petition No.9988 of 2005 was filed which was disposed of with a direction to EDO(R), Okara to look into the matter, who inquired into the matter and held that the candidates selected were according to the recruitment policy of 2004;
(v) Writ Petitions Nos.13201 of 2006, 1214 of 2007 and 827 of 2008 were filed with the similar prayers that the recruitment was not made in a transparent manner. W.P. No.827 of 2008 was disposed of with a direction to Senior Member Board of Revenue to redress the grievance whereafter Senior Member referred the matter to Recruitment Complaint Cell, who rejected the application of the petitioner;
(vi) Writ Petition No.17958 of 2009 was filed challenging the order of the Recruitment Complaint Cell which was disposed of with a direction to Senior Member Board of Revenue to probe into the matter who ultimately passed an order dated 8-12-2009 and once again rejected the claim of respondent No.3;
(vii) Feeling aggrieved of the order passed by Senior Member Board of Revenue dated 8-12-2009, respondent No.3 preferred Writ Petition No.26599 of 2010, in which on 7-5-2013, following direction was issued:--- "In view of what has been discussed above, this court find that respondents failed to justify the selection process on the touchstone of transparency and good governance as the same was against the criteria mentioned in the advertisement dated 11-12-2004. Therefore, this court directs respondent No.2 to review the process of recruitment, keeping in mind the advertisement dated 11- 12-2004 and the qualification of the petitioner vis-a-vis respondents Nos.3 to 9 and decide about the application of the petitioner within a period of one (1) month from the date of receipt of certified copy of this order. No order as to cost."
(viii) Feeling aggrieved of this order, I.C.A. No.546 of 2013 was filed by private respondents and I.C.A.
No.720 of 2013 was filed by Senior Member Board of Revenue.
3-A The learned Single Judge while passing the impugned order has held as follows:---
(a) Selection Committee only considered the marks obtained in the interview and did not consider the result of test for selection;
(b) The result of the test was never produced before the court in spite of repeated orders;
(c) In interview, unanimous marks were given by the Recruitment Committee, however, they had no criteria for award of marks; and
(d) Senior Member Board of Revenue has not redressed the grievance of respondent No.3 regarding non-consideration of marks awarded in test.
4. Learned counsel for the private appellants as well as the learned Law Officer for SMBR argued that respondent No.3 is a chronic litigant and has been invoking the jurisdiction of this Court time and again for the same grievance, which the, departmental authorities again and again have been refusing him and in spite of that he has been obtaining orders from courts to pressurize the department. It was further argued that the recruitment took place under the Recruitment Policy, 2004, which signify that a candidate will be evaluated on the basis of his academic qualification and interview and test is merely an additional assessment measure, which is not of much importance as compared to the academic qualification in the interview. It was finally argued that Judge could not have substituted the findings rendered by the Recruitment Committee with that of its own. In this regard, reliance is placed on Muhammad Ashraf Sangri v. Federation of Pakistan and others (2014 SCMR 157).
5. Respondent No.3 appeared in person and chose to argue himself. He submitted that he has not concealed any fact from this Court and the order passed by the learned Single Judge is in accordance with law.
6. We have heard the learned counsel for the parties and have perused the record.
7. The main stay of the judgment of the learned Single Judge was on the fact that in the advertisement, it was specifically mentioned that "test and interview" shall be the criteria for consideration and appointment of Patwaris. The learned Single Judge further held that the marks obtained in the test have not been considered by the Recruitment Committee and they have mainly relied on the marks granted during the course of interview.
8. The learned Single Judge was also not convinced with the argument that the recruitment was made under the Recruitment Policy, 2004 and on the touchstone of that criterion, appointments were to be made and advertisement could not be considered to be over and above the Policy.
9. While going through the Recruitment Policy, 2004, which was promulgated on 17-9-2004 (prior to publishing of advertisement for the posts of Patwaris), Clause 11(b) of the Policy has laid down the criteria for post in BS-5 to 10, which is broadly bifurcated in the following three categories:---
(i) Educational qualification;
(ii) Higher qualification in the relevant field; and
(iii) Interview.
10. It has been held by the Apex Court in Government of Punjab through Secretary (S&GAD), Lahore and another v. Zafar Maqbool Khan and others (2012 SCMR 686) that eligibility of a candidate had to be determined in accordance with the advertisement of the posts, service rules governing the appointments and any amendment or instructions backed by law. It is clear and obvious that apart from following the advertisement, Recruitment Policy, 2004 was followed by the Department in letter and spirit while making appointments of Patwaris, for which educational qualification and interview were the criteria. As regards the test, on which a lot of emphasis has been laid, the department had sufficiently explained that it was considered to assess the proficiency, knowledge of revenue work and handwriting of the contesting candidate. It was never denied by the Department that the test was not considered, but their stance was that the advertisement shall not prevail over Recruitment Policy.
11. It has been further held by the Apex Court in Executive District Officer (Revenue), District Khushab at Jauharabad and others v. Ijaz Hussain and another (2012 PLC (C.S.) 917) that the recruitment policies, are framed by the government as a part of delegated legislations and cannot be judicially reviewed on the basis of being vague or not based on sound reasons. It is within the domain of the government to frame such policies and the court can neither assume the role of policy maker nor law maker.
12. The learned Single Judge brushed aside the Recruitment Policy wherefrom criteria for evaluation of a candidate is established and assumed the role of Recruitment Committee by making the test as envisaged in the advertisements to be the bench mark.
13. The Supreme Court of Pakistan in judgment reported as Muhammad Ashraf Sangri v. Federation of Pakistan and others (2014 SCMR 157) held that:--- "Essentially an interview is a subjective test and it is not possible for a court of law to substitute its own opinion for that of the Interview Board in order to give the petitioner relief. What transpired at the interview and what persuaded one member of the Board to award him only 50 marks is something which a court of law is certainly not equipped to probe and to that extent we cannot substitute our own opinion with that of the Interview Board. Obviously if any mala fides or bias or for that matter error of judgment were floating on the surface of the record we would have certainly intervened as courts of law are more familiar with such improprieties rather than dilating into question of fitness of any candidate for a particular post which as observed above is subjective matter and can best be assessed by the functionaries who are entrusted with this responsibility."
14. The learned Single Judge misconstrued in holding that there was no criteria laid down by the recruitment committee for the award of marks in the interview and lost sight of the fact that this was not within the domain of this Court while exercising its constitutional jurisdiction to assume the role or perform functions of a selection authority. An interview is a subjective test and it is not possible for a court of law to substitute its own opinion for that of an Interview Board. It was within the domain of the members of the Board that what persuaded them to award certain marks to a particular candidate and the court of law is not expected to perform the function of selection authority and substitute their findings with its own findings.
15. It has been further held in Dr. Mir Alam Jan v Dr. Muhammad Shahzad and others (2008 SCMR 960) that the High Court in constitutional jurisdiction is not expected to perform the functions of a Selection Committee so as to substitute its opinion with that of the competent authority.
16. The above judgments of the Apex Court makes it abundantly clear that this Court in constitutional jurisdiction will not sit in as a Member of Interview Board and substitute its finding in place of the members. The learned Single Judge while deciding the petition has rendered a finding to the effect that by non-following the criteria laid down in the advertisement, the process of recruitment was neither transparent nor it smacks of good governance. It was never considered that the Recruitment Policy was promulgated much prior to advertisement of the present post and the criteria laid down will D supersede the advertisement and it was within the domain of the Recruitment Committee to ultimately award marks in accordance with the criteria laid down. This was never the case of respondent No.3 that he was not awarded marks in accordance with the Recruitment Policy, 2004 but his main emphasis was on non-inclusion of marks of test. This was not denied by the department that the test never took place or was never considered but their stance in this regard was clear that the recruitment policy shall prevail over the advertisement.
17. For what has been discussed above, we are not in agreement with the finding rendered by the learned Single Judge of this Court, hence are of the view that the impugned order dated 7-5-2013 is not sustainable and the same is, therefore, set aside by way of acceptance of both these appeals, as a sequel to which writ petition stands dismissed.