' SHAHID JAMIL KHAN, J. --- A direction is sought for promotion of petitioner to BS-04, pursuant to recommendations by Departmental Promotion Committee ("DPC") in its meeting held on 11.08.2015.
' Petitioner, being Naib Qasid, is posted at Medical Social Services Project, THQ Hospital, Kot Radha Kishan, 'District Kasur. As per contents of petition, he initially failed in Typing Test for departmental promotion, along with respondent No. 7 and two other candidates. The contestants again appeared in subsequent Typing Test, when only petitioner was declared successful by securing speed of 25 words per minute. Consequently, he was considered by DPC and was recommended for promotion.
' Allegedly, the matter of promotion of the petitioner was lingered on at the behest of respondent No. 2 who wanted to get respondent No. 7 promoted against the post. To achieve this design various applications were moved causing delay in finalization of petitioner's promotion. Ultimately respondent No. 2 maneuvered to get the petitioner declared as fail in the subsequent Typing Test vide letter dated 11.08.2015.
2. Learned AAG pleaded against maintainability of this petition in view of bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. He was confronted with the judgment by Honorable Supreme Court in Secretary Establishment Division, Government of Pakistan, Islamabad v. Aftab Ahmed Manika and others (2015 SCM R 1006), wherein it is held that "Constitutional jurisdiction of High Court is not ousted in matters pertaining to appointment of civil servant to a particular post or to be promoted to a higher grade". He requested for some time to seek instructions and file comments. On next date respondents No. 1 and 2 along with Assistant Director/System Network Administrator, Kasur appeared. They were asked to establish bona fide and transparency in conducting the Typing Test, but could not reply satisfactorily. Impugned letter dated 11.08.2015 was also confronted to Assistant Director/System Network Administrator, Kasur for this .purpose. He did not show any reason for declaring the petitioner as fail, however, submitted that his score was wrongly calculated. He conceded that test was conducted at a software called 'Typing Tutor', which was downloaded from some website. The state of affairs in respondent department, surfaced during proceedings, led to strong presumption that fair and transparent procedure was not being employed.
' Learned AAG was asked to assist whether any regulation was available for conducting Typing Tests, he requested for some more time. On the following date of hearing, Law Officer of Punjab Information Technology Board appeared before the Court and apprised that no such regulation has so far been made by Government of Punjab. Miss Yousra Malik, Section Officer S&GAD, Government of Punjab appeared as a consequence and apprised that the regulation for conducting Typing Test transparently is under process and is likely to be notified soon.
' On subsequent date, copy of the Notification dated 20.11.2015 was submitted, wherein procedure is prescribed for conducting and granting score in the Typing Test. The Notification is reproduced here under for ease of reference:--- "No. SORIV(S&GAD)10-8/2015 GOVERNMENT OF THE PUNJAB SERVICES & GENERAL ADMINISTRATION DEPARTMENT (REGULATIONS WING) Dated Lahore the 20th November, 2015 To
1. The Senior Member, Board of Revenue, Punjab.
2. The Chairman, Planning & Development Board, Punjab.
3. All Administrative Secretaries in the Punjab.
4. All Commissioners in the Punjab.
5. The Provincial Police Officer, Punjab,Lahore.
6. The Chairman, Chief Minister's Inspection Team, Lahore.
7. All Heads of Attached Departments in the Punjab.
8. All Heads of Autonomous Bodies in the Punjab.
9. The Registrar, Lahore High Court, Lahore.
10. The Registrar, Punjab Service Tribunal, Lahore.
11. The Secretary, Punjab Public Service Commission, Lahore.
12. All District Coordination Officers in the Punjab.
13. The Accountant General Punjab, Lahore.
14. All District Accounts Officer in the Punjab.
SUBJECT: PROCEDURE FOR COUNTING OF WORDS FOR TYPING TEST ' Kindly refer to the subject noted above.
2. In order to streamline the procedure and to ensure transparency in conducting shorthand/typing tests in accordance with speed prescribed in the relevant service rules for the recruitment of Stenographers/Junior Clerks, the following guidelines are issued for the guidance of selection authorities: Shorthand Test
(i) The required number of words per minute, of the concerned department will be multiplied with five (5), that would be equal to total numbers of words, required for dictation.
(ii) Calculate the total errors after dictated passage is received by the examiner.
(iii) 1/2 mark is deducted for error in shorthand script and one mark is deducted for one error in transcribed script.
(iv) The total of errors is counted and they should not exceed 5% i.e. if a candidate takes dictation of 400 words, his errors should not be more than 20.
(v) 400-20=380 380x100/400=95%.
(vi) 95% accuracy is required for successful candidates appearing in shorthand test.
Typing Test on Computer
(i) Five strokes are equal to one word.
(ii) The required number of words per minute, of the concerned department will be multiplied with five (5), that would be equal to total numbers of words, required for dictation, i.e. for speed of 40 words per minute total words to be typed: 40x5=200 words.
(iii) If a candidate types 200 words in the stipulated five minutes and he made 10 errors, then his speed will be calculated as under: Total words typed 200 Errors 10x5 = 50 200-50 = 150/5 = 30 words per minute
3. It is, therefore, requested to kindly ensure transparency in the typing test by following the above- said guidelines. -sd/- (YOUSRA MALIK)
Section Officer (Regulations-IV)
CC:
6. PS to the Secretary to Governor, Punjab.
7. PS to the Secretary to Chief Minister, Punjab.
8. PS to the Chief Secretary, Punjab.
9. PS to the Additional Chief Secretary, Punjab.
10. PS to the Secretary (Regulations), S&GAD."
3. Learned counsel for the petitioner submits that the petitioner is entitled to be promoted to BS-04, in pursuance of recommendations of DPC dated 11.08.2015. He insists for decision of the petition in view of prayer in the petition.
4. Heard, record perused.
5. After examination of case in light of pleaded facts and developments during proceedings, it is an irresistible conclusion that authority to determine eligibility for appointment against a post, was being exercised capriciously. No procedure, with uniform standards, was provided by Government of Punjab, for conducting Typing Test to determine valuable right of contesting candidates. The determination was left on the discretion of relevant authority with every possibility of its misuse to accommodate the favorites. Procedural impropriety, if entails consequence of effecting right of a citizen is a ground for judicial review of executive action. Such exercise of authority should not and cannot go unnoticed. In Saddaqat Ali Khan through L.Rs. and others v. Collector Land Acquisition and others (PLD 2010 S.C. 878), the apex Court of the country held:--- "15. What is discernable from the above-quoted judgments and others is that the basic object behind establishment of Courts in a society was never just to administer law but was, in fact, to dispense justice. The ultimate goal sought to be achieved by the Courts was thus to do complete justice between the parties and to ensure that the rights were delivered to those to whom they belonged and no hurdles were ever considered strong enough to detract the Courts from reaching the said end "
' In Habibullah Energy Limited and another v. WAPDA through Chairman and others (PLD 2014 S.C.
47), after quoting earlier judgments, sphere of judicial review was reiterated to ensure that administrative and executive actions are arrived at in fair, just and transparent manner. Honorable Court went on to observe that failure on the part of courts to set aside an action taken otherwise, if noticed, would make it a party to such unreasonable, unfair, mala fide and Illegal action. Relevant excerpt is reproduced for reference:-- "28. An overview of the judgments reproduced or referred to herein above leaves little room for doubt that it is now a well-settled principle of law that all public functionaries must exercise public authority, especially while dealing with the public property, public funds or assets in a fair, just, transparent and reasonable manner, untainted by mala fide without discrimination and in accordance with law, keeping in view the Constitutional Rights of the Citizens. This would hold true even in the absence of any specific statutory provisions setting forth the process in this behalf.
Therefore, it is not really relevant whether the transaction in question was governed by the Ordinance, 2000 or the Rules, 2004 or neither. It is an equally well-settled principle of law that such actions of public functionaries are always subject to Judicial Review. No doubt, while exercising its jurisdiction, the Superior Courts neither sit in appeal over the administrative actions nor interfere on account of inconsequential deviations, as has been observed in Dr. Akhtar Hassan Khan's case (supra). However, where administrative authority acts in a discriminatory manner and action fails the test of reasonableness, transparency and/or is otherwise unjust and unfair or suffer from mala fide, the Courts not only are vested with the jurisdiction to set aside such action but any failure in such an eventuality to exercise the power of Judicial Review, when invoked, would make the Court a party to such unreasonable, unfair, mala fide and illegal action."
6. In Raja Mujahid Muzaffar and others v. Federation of Pakistan and others (2012 SCM R 1651) it is held, "Public funds, public property, licenses, jobs or any other government largess is to be dealt with by public functionaries on behalf of and for the benefit of the people". The action of conducting Typing Test without prescribing transparent procedure was interfered by seeking explanations. However, Government of Punjab responded by supplying a procedure through Notification dated 20.11.2015, supra. It is expected that the notified procedure shall be followed by all the concerns to conduct Typing Test for determining eligibility in fair, just, transparent and reasonable manner.
7. So far petitioner's prayer is concerned; there are some apparent irregularities, yet it cannot be ignored that question of petitioner's passing the Typing Test has become disputed fact after statement by the Assistant Director/System Network Administrator, Kasur that petitioner's score was wrongly calculated. Honorable Supreme Court of Pakistan in Al-Hamza Ship Breaking Co. and 14 others v. Government of Pakistan through Secretary Revenue Division, Ministry of Finance, Islamabad and others (2015 SCMR 595) held against deciding disputed questions of facts in exercise of constitutional jurisdiction by High Courts, however, has directed not to ignore manifest arbitrariness in exercise of executive authority.
' In Suo motu Case No. 13 of 2009 (PLD 2011 S.C. 619), it is held, "....power of judicial review is not an appeal from the decision, the Court cannot substitute its decision for that of the decision maker".
Therefore, petitioner's prayer for appointment on the basis of recommendations by DPC cannot be allowed.
8. Nevertheless, for the reasons noted above and following the dictum laid down by Honorable Supreme Court, the Typing Test conducted by respondents, in absence of any transparent prescribed procedure is set aside.
' Learned AAG has undertaken before the Court that the post in question shall be filled after conducting Typing Test in accordance with the notified procedure.
9. Respondents are directed to allow petitioner, as well as, other contestants to participate in Typing Test to be conducted in transparent, fair and reasonable manner in accordance with the Notification dated 20.11.2015.
' Petition stands disposed of accordingly. 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.